Dimidium Group Pty Ltd v Marrickville Council

[2004] NSWLEC 456

Land and Environment Court

of New South Wales

CITATION:	Dimidium Group Pty Ltd v Marrickville Council [2004] NSWLEC 456
PARTIES:	APPLICANT Dimidium Group Pty Ltd RESPONDENT Marrickville Council
FILE NUMBER(S):	11411 of 2003
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- Conversion of an industrial building into apartments - carparking - internal amenity - character of locality - increased bulk and scale of additions to industrial building - streetscape - privacy of neighbours
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 65 Marrickville Local Environmental Plan 2001
CASES CITED:
DATES OF HEARING:	15-16/04/2004
EX TEMPORE JUDGMENT DATE :	07/20/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr J Cole, solicitor SOLICITORS Abbott Tout RESPONDENT Mr A Pickles, barrister SOLICITORS Mr G Christmas

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

20 July 2004

11411 of 2003 Dimidium Group Pty Ltd v Marrickville Council

JUDGMENT

1 This was a class 1 appeal No. 11411 of 2003 between Dimidium Group Pty Limited and Marrickville Council in regard to the refusal of the proposal at No. 43 College Street, Newtown, to convert an existing use industrial building into 29 single bedroom apartments and a corner café, with off street parking for 33 vehicles, and to strata subdivide the premises.

2 The building was on the corner of two streets, Camden and College Streets and was embedded in a residential area comprising one and two storey Victorian houses, some detached and some attached in terrace style or semi-detached. On the east side of College Street the proposal faced the back fences of houses fronting Station Street, the next street to the east.

3 Beside the proposal on College Street was No. 41 a two storey terrace in a row of five terraces. Beside the proposal on the west on Camden Street was No. 1 a single storey terrace in a row of four terraces. The back fence of No. 1 ran past the back fence of No. 41 at the rear. Both neighbours had the high masonry walls of the site built along the full length of the boundaries adjoining their properties.

4 The existing building had saw tooth roofs running east/west so the masonry wall adjoining No. 1 varied between about 8½ m and 11½ m high and on the north adjoining No. 41 a wall about 8½ m high. These walls were to be retained and the proposal included a fourth floor within the height of the saw tooth. Units abutted the walls of the saw tooth and in the gaps between had terraces 5 m wide so the units at those locations were set back 5 m from the boundary with No. 1 Camden.

5 The fifth floor units that were above the tops of the saw teeth were two only, located more or less in the centre of the building set 5 m from the boundary with No. 1 and 8 m from the boundary with No. 41 and 5 m from the Camden Street facade and about 13 m from the College Street facade. There were two master bedrooms on he 5th floor from units on the fourth floor accessed by internal stairs from below.

6 The two street facades of the industrial building were both located right on the street boundaries.

7 The respondent drew the Court’s attention to the third storey on the Camden Street facade. The existing roof sloped down to the eaves on the existing second storey there. The proposal brought the third storey units right to the Camden Street facade above the existing eaves level creating another storey on the boundary line. It was the fourth storey that stepped back.

8 The units on the lower levels had no windows in the existing walls adjoining Nos 1 and 41. The units obtained light and ventilation from new windows in the Camden and College Street facades and from a courtyard to be created in the north west corner of the building adjoining the back yards of Nos 1 and 41, but screened from them by the existing high walls of the subject property. Five of the properties gained their primary light and ventilation from this courtyard which was designed as a quiet garden to be used by all the residents of the proposal. Its floor level was located at about the third storey level on top of the two carparking levels.

9 Vehicle access was through two existing truck bay entry doors, one off College Street against No. 41 to a seventeen place carparking area. The second truck bay was off Camden Street and gave access to another sixteen carparking spaces. Due to the slope on Camden Street towards the west this carparking area was below the one off College Street. The carparking areas were located against the western and north walls of the existing building and there were apartments on the same levels on both street side facades.

10 The bicycle and garbage bin doors were accessed from the Camden Street vehicle entry.

11 The main lobby to the building was off College Street where there was a lift to the first four floors. The fifth floor units were accessed by separate entries and stairs on the fourth floor. As mentioned previously two of the units on the fourth floor each had an internal stair up to a master bedroom on the fifth floor.

12 The units on the ground floor street levels had individual entry gates off the footpath into individual loggias in addition to an entry door accessed through the main entry lobby of the building. One unit, No. 5, was between the Camden Street carpark door and the boundary wall with No. 1 Camden Street. Its internal access was rather tortuous being via the main entry lobby to a corridor that led to the Camden Street carpark then through the carpark and down stairs to its entry door.

13 The cafe was on the corner of Camden and College Street. It was not large having tables and chairs on the plans for 21 seats.

14 The issues in the appeal were:

1. Whether the height, bulk, scale and aesthetics of the proposed development is acceptable having regard to:
(a) surrounding development and the expected future character of the area;
(b) streetscape presentation and visual impact of the development and;
(c) principles of good design relating to scale, bulk, height and aesthetics.

(i) Relevant principles relating to bulk, scale, height design and aesthetics (although not statutory controls for this development) are found in Part 2 of State Environmental Planning Policy No. 65 , (“SEPP 65”) and the council’s Urban Housing Development Control Volume II, (“the DCPP”) - Part 2B, section B1 and B2.

(ii) Relevant principles relating to a surrounding development and expected future character (although not statutory controls for this development) are found in Marrickville Local Environmental Plan 2001, clause 11 objectives.

2. Whether the external and internal amenity for the future residents of the proposed development would be of an acceptable standard.

(i) Relevant principles relating to external and internal amenity (although not statutory controls for this development) are found in Part 2 of SEPP 65 and the DCP - Part 2A, section A1 and Part 2C, section C3.

3. This Issue was deleted.
4. Whether the proposed development provides a satisfactory amount of on-site carparking having regard to the proposed uses.
5. Whether proposed car spaces Nos. 31-33 have adequate manoeuvring areas.
6. Whether consent should be granted having regard to the issues raised by the objectors to the development application.
7. This Issue was deleted.

15 The respondent’s evidence was heard from:

• Mr T Mithen town planner for the council and
• Mr N Dickson heritage architect and urban designer.

16 There had been a large number of objections and a petition lodged against the proposal and they were in Exhibit 6. Evidence was taken on site from objectors who attended the visit by the Court and summarised in Exhibit 13. Those residents giving evidence were:

• Mr R Norris of 40 Camden Street,
• Ms C Lewis of 1 Camden Street,
• Ms A O’Sullivan of 41 College Street,
• Ms N Wales of 133 Station Street,
• Mr P van der Hilst of 135 Station Street,
• Mr M Hossegor of 131 Station Street and
• Ms M Saville of 141 Station Street.

17 The applicant’s evidence was heard from:

• Mr S Layman architect and town planner,
• Mr J Coady traffic engineer and
• Mr G Ferris-Smith architect.

18 The site has existing use rights under the Environmental Planning and Assessment Act 1979. The respondent agreed that due to this the Marrickville statutes and controls were not directly applicable but served as guides for appropriate development along with State Environmental Planning Policy 65 for design quality of residential development.

19 The site was zoned Residential 2B under the Marrickville Local Environmental Plan 2001 which permitted with consent two storey multi-unit residential development. Cafes such as in the proposal were prohibited in the zone, as was its previous industrial use, except for the existing use rights. The allowed floor space ratio was 0.7:1, the existing building was 1.33:1 and the proposal was to 1.9:1 and was five storeys. The maximum permitted height in the 2B zone was 7.2 m. The proposal was about 15 m and the top of the existing saw tooth roof was about 12 m.

20 The existing building was, as one can appreciate from those statistics, much larger than complying development in the zone and the proposal enlarged its external proportions by the fifth level and those parts of the fourth level that filled in the gaps between the saw tooth roofs.

21 During the hearing amended plans were tendered in Exhibit G that changed none of that, except the internal configuration. Instead of 30 apartments, it became 29 one-bedroom units and one two-bedroom unit.

22 The amended plans had been seen by the respondent only the day before the hearing, and they had followed other amended plans one week earlier. Mr Mithen and Mr Dixon had tendered replies to the amended plans in Exhibits 11 and 12. There were a number of inconsistencies in the drawings such as:

• The survey of the site in the existing building had a 45 splay at the corner of College and Camden Street. The drawings showed the building cantilevering past this splay and over the footpath on the second, third and fourth storeys.
• Planted vegetation was shown on internal corridors where there was no natural light.
• Skylights and glass blocks in tiny light shafts were provided to light and ventilate some internal rooms. These skylights were not adequate to solve internal amenity requirements of the relevant construction statutes such as the Building Code of Australia.
• Some areas of living spaces and kitchens were more than 8 m from a window and would not comply with the Building Code of Australia in having adequate light and ventilation.
• Enlargement of some open space or loggia areas, to make them useable, had been at the expense of reducing internal room sizes such that some were impractical, for example unit 14 had a dining room 1.8 m wide. That was also the passageway from the front door to the living, kitchen and bedroom.
• The living rooms of five units were labelled 3.1 m wide but scaled only 2.6 m which gave insufficient space for furniture and access.
• Elevations showing windows et cetera did not match in all cases with the floor plans.
• Fire stairs and fire exits and headroom in various locations did not appear to comply with the Building Code of Australia.
• The proposal in the council’s estimation needed another three or four on-site visitor car spaces to comply with the RTA guidelines or the council’s parking code respectively. The applicant had indicated orally to the council experts that car stackers may be used to provide these but they are not evident in the drawings, neither is the adequacy of headroom for the stackers.

23 Some seven pages of deficiencies were listed in Exhibit 12. The respondent put that these technical deficiencies may be able to be resolved by further amended drawings, if the Court was minded to approve the proposal based on the wider issues. Therefore the respondent did not object to the tender of the Exhibit G drawings.

24 The resident objectors’ concerns were summarised in Exhibit 13 as:

• traffic, noise and activity increasing,
• heritage of the locality compared to the appearance of the proposal,
• garbage collection of the multiple garbage bins on the narrow footpath in Camden Street,
• privacy for some of the units and residents opposite the development,
• objections to the cafe as an un-needed commercial facility in a residential area, and
• the character of the development.

25 The respondent’s experts’ issues were summarised as:

• height,
• bulk and scale and
• the shortfall of visitor parking.

26 In regard to the carparking issue the applicant submitted that the Camden Street carpark was to be excavated 800 mm to give headroom for the stackers and protested against the requirement for the additional on-site visitor spaces, saying that on-street parking outside the site was six spaces and that should be accepted as visitors were short staying.

27 If that was not accepted then the council’s parking code allowed for reduced on-site spaces where a site was near a good public transport. The site was near three rail stations, Newtown, St Peters and Erskineville, and two main bus routes on King Street and Enmore Road.

28 In support of this the applicant noted Exhibit 8 condition 3 of the draft conditions allowed a nine space discount due to this, and in further support said that in Exhibit 7 Mr Coady checked the census statistics for Marrickville on car ownership and found at 0.79 cars per dwelling a total of 23 cars were likely to be owned by occupants, so ten would be available for visitors and occupants with extra cars.

29 The applicant also submitted on the bulk and height issues that the area contained a number of old large industrial buildings embedded in the low-scale residential areas so the site was not unique. Also there were blocks of three and four storey blocks of flats nearby and even a six storey block only a couple of streets away.

30 The upper levels of the proposal were set back from the street facades, the applicant said, so they would not be dominant in the locality and the extra storey above the Camden Street facade emphasised the corner in the way Victorian urban design often did.

31 Mr Mithen was taken to internal amenity concerns and he drew attention to the small light shafts to units 1, 7 and 12. They were the source of natural light and ventilation to the bedrooms of those units. Unit 1 was three floors down from the roof, unit 7 was two floors down. The roof plan showed a skylight on top and the elevations did not indicate it was a ventilating type. The light shaft had glass block panels to the lift lobby on each floor directly opposite the bedroom windows. He thought there was great unlikelihood of inadequate light and ventilation to these rooms and there could be noise and privacy concerns from persons in the lift lobby of each floor.

32 The loggias on the ground floor and first floor depended entirely for light on the adjustable aluminium louvre grilles on the street facades. When closed, the loggias would be dark. When open, he thought, light would still be limited.

33 Only the loggias on the second floor had openings to the sky, but some of them could be looked down into from the decks and windows of third floor units so privacy was lost.

34 The loggias on the ground floor units, No.s 1, 2 and 3, were directly off the concrete public footpaths. Mr Mithen thought the aluminium louvres could be prone to vandalism and when the louvres were open there would be no privacy from pedestrians on the footpaths. The living room windows of units 1, 2 and 3 were also right on the street boundary with floor to ceiling glass. That gave no privacy to the units’ living rooms and added a real concern over security. People could obviously reach them directly from the footpath and either reach through or climb through. No security grilles were shown on the plans.

35 The loggias of the units 1, 2 and 3 had bi-folding doors to the full walls of the living and dining areas adjacent to each loggia. With the bi-folds open the loggia and the interior rooms would be open to view from the footpath.

36 Units 4 and 5 had a courtyard or terrace facing south on Camden Street. Unit 4 was at footpath level. Unit 5 was five steps above the footpath level. They each had a metal grille balustrade and small gate to the street. The living room of each unit opened with bi-fold doors to the terrace. Mr Mithen said that they had no privacy either, and facing due south would get no sun at all in mid-winter. The bedrooms of these units were on the first floor level also facing south.

37 Units 15, 16, 17, 18, 25 and 26 above them also faced south and would get no sun to living rooms at all in winter.

38 Unit 15 would get a little sun to its kitchen via a window located between its bench-top and the underside of the top cupboards, and to one of its bedrooms through a low horizontal slit window on the east side. Units 24 and 25 would get sun in mid-winter on part of their planter boxes on their south-facing terraces, but the paved areas of them would be in shadow due to the new fourth and fifth floors of the proposal.

39 Mr Mithen thought that made eight units with poor solar access and units 1, 2 and 3 would have to keep curtains and louvres shut for privacy and so have little solar access, making eleven units out of thirty with poor solar access. He did not think that showed good design.

40 On visual impact he had done sight line checks and believed from Camden Street a pedestrian or people in their front yards would see the fourth and fifth floors. Also, on the privacy of those houses, due to the front yards being on the north side, they were used for recreation. Some had high fences for privacy from Camden Street. The height of the proposal meant for those, overlooking would be a concern.

41 Hogan Park was on the south side of Camden Street nearly opposite the site. Views from the new fourth and fifth floors would benefit in that direction. The fire stairs on Camden Street side, although not obvious on the elevations, had zero set-back to the street boundary and went straight up four floors. It would accentuate the extensions and height of the building in the streetscape and be seen from up and down the street. Mr Mithen thought it increased the visual impact of the building that already had great visual impact in the locality.

42 Off College Street he agreed you would not see the new fifth storey when you were close to the site but you would see the new fourth storey from up and down the street and the fifth when further away.

43 During the hearing the applicant amended the plans in Exhibit G:

• The garage doors were moved into the entry portals so that car noise and the raising and lowering of the roller doors would be reduced in their impact on immediate neighbours.
• A bicycle store was put in,
• Chair lifts on internal stairs from the carparks to the lift lobby were put in,
• A door direct from the fire stairs to the street was put in.
• The vegetation in the internal corridors was changed to pebble gardens.
• The Camden Street fire stair was given a mansard roof on the fourth floor to reduce its visual impact.
• The gates into the loggias of units 1, 2 and 3 were deleted and included in the vertical aluminium louvre grilles which later became horizontal aluminium louvre grilles.
• On the north elevation abutting the masonry wall of 41 College Street a sheet metal wall had been shown. It could not be maintained as it would be flush against the walls of 41. It was changed to masonry.
• The large planter trough on the terrace of unit 22 was corrected on sheet 10 in section to reflect what was on the floor plan.

44 Mr Mithen said the Exhibit G plans fixed some details but not his major concerns. He agreed car stackers were feasible and should be installed to provide additional on-site spaces. He noted that Mr Coady’s on-street parking survey was done in school holidays when many local residents were away. He thought the objectors’ concerns about night-time lack of street parking for residents was valid. Most old terrace houses nearby had no access for off-street parking. Mr Mithen had used SEPP 65 and the associated residential design code and the council’s Development Control Plan 35 to come to his conclusions on the proposal.

45 It was put to him the vertical louvres on the loggias could be made horizontal and tilted up to let the sun in and prevent people looking directly in. He agreed that would be better, but people close to the louvres could probably still see parts of the loggias. Also it did not solve the problem of the living room windows.

46 He agreed the site was a good location for higher density housing due to proximity to transport, Hogan Park and the Newtown shops and entertainment areas.

47 He maintained that most of the units were very small and those with the bedrooms behind the living rooms and lit via the light shafts or in some cases with no light shafts, were extremely poky.

48 He said the communal open space courtyard in the north-west corner of the site was small at about 6 m by 18 m for the occupants of twenty-nine units. It was enclosed on all sides, and was the northern light and ventilation for units 19, 20, 21, 27 and 28. Activity in the courtyard would have privacy and noise impacts on those units. He agreed its landscaping as a pebble garden may encourage its use more for contemplation or quiet reading et cetera. He agreed Hogan Park would provide space for more active pursuits.

49 It was put to him that the visibility of the fourth and fifth floors in the streetscape was limited from the west along Camden Street. He agreed that may be correct but coming from King Street, as most residents did along Camden, the extensions would be in full view as well as from the north along College Street. Street trees at a further distance away from the site might obscure the upper floors but within say 50 m of the proposal they would be obvious.

50 He agreed the existing subject building was not typical of the locality, and based on its existing use rights would remain more or less as it was.

51 He did not agree the five storey buildings on King Street, the old three storey flats in Camden near King Street and the occasional views of six storey flats a couple of city blocks away justified the proposal at five stories. They were out of the immediate precinct of the proposal where the character was one and two storey and where the desired future character was to retain that.

52 He agreed the existing coarse stepped parapet on the subject building was not attractive, and the proposal’s treatment that made the parapet a smooth inclined form was an improvement. He was concerned that some of the window and terrace or loggia openings on the floor plans did not match the elevations but believed proper coordination of drawings could fix that.

53 He said of Mr Coady’s census statistics of lower car ownership at 0.79 cars per one-bed unit in Marrickville, that they reflected the existing old Victorian houses that had no on-site parking, and the prior lower socio-economic demographics of the area. That was changing, and council’s latest s 94 plans had investigated car ownership, and found it was now 1.3 cars per two-bedroom unit and 1 car per one-bedroom unit.

54 Mr Coady defended his carparking estimate saying on the basis of current statistics twenty-three on-site spaces would be sufficient, and he thought that even without the car stackers the 33 car spaces proposed would be ample. A rotating turn table had been installed in the upper carpark to enable three of the cars to turn around in an area that otherwise they would not be able to manoeuvre, so the full thirty-three car spaces would be available.

55 Mr Coady said that the dispute, as a result, was only over visitor spaces. Under development control plan 35 the proposal was supposed to have four spaces in addition to those provided and, under the RTA guide, three spaces. Both controls allowed three visitor parking spaces on the street. The site had six on-street spaces along its frontages so that allowed three local residents to park as well as three visitors to the site. The strata allocation would be one on-site space per unit so there would be four on-site visitor spaces giving six visitor spaces total on-site.

56 He said his local parking survey, done the night before the hearing, checked 85 nearby on-street spaces every 30 minutes from 5.30 pm to 10 pm. They averaged 56.5% occupied so there was ample on-street parking available, he said. He agreed his survey was during the Easter holiday and it was school holidays as well on a Thursday night, but he felt 56.5% occupancy left a lot of on-street carparks for the busier times. He said the southern section of the King Street restaurant and shopping strip was not as busy as north of the Newtown Station and would not generate demand for on-street parking by shoppers and restaurant patrons.

57 Mr Dickson did not accept the new treatment of the facades would pick up the streetscape rhythm of the existing terraces. The existing terraces had a vertical emphasis whilst the proposal had horizontal emphasis. All the openings that created the modulation were much longer horizontally than they were vertically.

58 He disagreed that the visual impact of the proposal would be similar to the existing building. On the Camden Street elevation the third floor was a half level higher than the existing parapet and on the corner it was a full floor higher, and the fourth and fifth floors would clearly be seen above that. In area measurement that elevation was almost double the existing.

59 On the College Street elevation he noted the plans did not even show the fifth storey except in very faint outline, so that on first glance the elevation appeared much smaller than it actually was. He believed that this elevation would be seen especially from the east along Camden Street.

60 He supported Mr Mithen’s opinion of poor amenity and design for units 1, 2 and 3 in particular. He noted unit 1’s floor level was about 400 mm below the footpath level at one point. People on the footpath could look down into it even through horizontal louvres but they would look through the living room windows anyway. Privacy was almost nil except for curtains.

61 The loggias had walls and ceilings. They could hardly be classified as courtyards or private open spaces. To resist vandalism the louvres would have to be of heavy construction. Not a lot of daylight would get into the loggias. He said units 6, 7, 8 and 9 would have poor light in the loggias also because of the louvres, but privacy would be acceptable.

62 He also drew attention to the enlarged loggias having taken their extra area from adjacent rooms rendering several rooms too narrow for furniture. Also windows and terraces on the fourth floor looked down into the roof openings to loggias on the third floor being units 12, 13, 14, and 16. The loggias of units 11, 17 and 18 achieved visual privacy but only due to planter boxes around the roof opening on terraces of units 22 and 26.

63 Mr Dickson said these impacts arose from looking at the revised plans so, in trying to fix the lack of sunlight to the third floor loggias, another problem had been created.

64 He noted the kitchens of units 1, 2, 3, 4, 5, 6, 7, 8, 9, 12, 13, 14, 19, 20 and 21 all had kitchens between 5 m and 9 m from any natural light and they were in the corridors to the entry door of each unit. They would always need lights on to see and were in the main access corridor of each apartment.

65 Mr Dickson also noted that ceiling heights in all units were 2.55 m whereas SEPP 65 asked for 2.7 m for adequate internal amenity, so the proposal only met the Building Code of Australia requirement, not SEPP 65. He also noted for mixed use developments SEPP 65 sought 3.3 m ceiling height on the ground floor to allow for possible commercial use. Given that the cafe component of the proposal would preserve the existing use rights of the building it was conceivable that units 1, 2, 3, 4 and 5 might in the future seek change of use from residential to commercial.

66 Mr Dickson thought other designs for conversion of the existing building to residential uses could much more successfully fit into the character of the area.

67 Mr Layman said that the layout of units 1, 2, 3, 7, 8 and 9 were similar to layouts for units in the City of Sydney Local Government area in Exhibit J with bedroom setback 6 m from a source of natural light. The Marrickville Development Control Plan 35 set 10 m as the maximum so in his opinion the proposal complied and the light shaft windows to the bedrooms only improved it.

68 On the loggia louvre blades, he said when fully open their profile occupied only 10 %of the opening in the external wall. He said that would enable ample natural light in for the loggias and the rooms beyond them. He said units 4 and 5, although facing south, they had two storeys with the street front courtyards being two storeys as well. This gave good access to light to compensate for the south orientation. The units above them, 15, 16, 17 and 18 were at the third storey height with views above the houses on the southern side of Camden Street and access to more light. The loggias of units 16, 17 and 18 now had roof openings so they would get some direct sun and that would give them more acceptable amenity.

69 Privacy screens would resolve the overlooking of loggias from units on the next level above.

70 Mr Layman thought only six south-facing units out of twenty-nine units was good design. In regard to SEPP 65, he said the residential guide was just that, a guide, and it did not consider adaptive re-use of industrial buildings. He thought achieving 45% of all units with cross-ventilation was acceptable in the circumstances as was ceiling heights of 2.55 m. The Building Code of Australia required a minimum of 2.4 m so the proposal gave more than the minimum.

71 The communal open space had an area of two and a half times the minimum sought in Development Control Plan 35 and it was located in the best part of the site for solar access and remoteness from the street noise. He saw it as a quiet place for relaxation. Hogan Park was available for more active use.

72 The neighbours outside the site were all across the other side of College Street or Camden Street. The accepted separation distance for privacy in AMCORD was 9 m. All were well in excess of that at 10 m to 12.5 m to allotment boundaries. Being seen at that distance was acceptable privacy in a medium to high density residential area.

73 On College Street most neighbours seemed to be concerned about occupants of the proposal seeing through small bathroom windows or through trees and shrubs to small yard spaces or rear windows of kitchens or in some cases family rooms. On Camden Street, concerns were about front yards, most of which were hardly private from the street.

74 Mr Layman said No. 41 did have a legitimate concern of overlooking from levels four and five to one bedroom window and balcony at the rear but that could be solved easily by a privacy screen on the northern wall of the communal open space.

75 In regard to overlooking of No. 41’s first floor front balcony and bedroom windows from the deck of unit 22, he said the revised plans had a roof opening to the loggia of unit 11, so no-one could stand at the north east corner of the building and look down on to No. 41’s front balcony and windows. Planter vegetation around the top of the roof opening also prevented people on the deck looking down into No. 11’s loggia.

76 On the facade treatment Mr Layman thought it did reflect the Victorian terraces because the long horizontal windows and loggia openings of the proposal were about the same width as a terrace house, so they would give a pattern that was sympathetic to the existing streetscape character.

77 He found the height and bulk of the two upper floors would not be dominant due to their setbacks from the street facades. Only the top portions would be seen and street trees would soften and screen them from north on College Street and west on Camden. The existing trees already screened to some extent. From the east the two storey terrace house at 147 Station Street on the corner with Camden cut off a view of the proposal until one was at Station Street.

78 He liked the raised corner of the building at Camden and College. He said it gave a corner feature and balanced the existing west end of the Camden facade. The latter had greater bulk due to the down slope of the road.

79 He agreed the dominant local character was one and two storey terraces but the occasional old industrial building and occasional three storey walk-up flats and a few multi-storey flats could not be ignored. The proposal was one of them and was part of the overall character.

80 Mr Layman was shown the City of Sydney apartment layout in Exhibit J. It was put to him the layout showed a terrace or balcony beyond the living room. The loggias of units 1, 2, 3, 4, and 11 to 18 were within what would otherwise be living room on the Sydney plan, so the units of the proposal were comparatively smaller. He thought the loggias acted like a room extension so it didn’t matter.

81 He was taken to the very tight floor plans and furniture layouts in Exhibit 12 for units 1, 2, 3, 7, 8 and 9 and asked where would a television set be located. He said, perhaps in the bedroom.

82 He agreed that the profile of the louvres occupying only 10% of the area of an opening did not mean only 10% reduction of light in the loggia. He agreed the amount of light reduction would be greater than 10% and it would vary depending on the tilt of the louvres.

83 It was put to him that SEPP 65 did not have to refer to different building types because it applied to the habitability of finished apartments of whatever kind. He said SEPP 65 must apply to different buildings than industrial or warehouse conversions because it talked about boundary setbacks that industrial and warehouse buildings usually did not have.

84 It was put to him that SEPP 65 guide in Exhibit 14 page 77 did refer on building configuration to, “ensure adequate privacy and safety for ground floor units located in urban areas with no street setbacks.” He agreed that it did apply to the proposal.

85 In submissions the applicant said that its evidence supported no provision of stackers in the carparking area. The thirty-three spaces were sufficient. Also the applicant put that the cafe on the street corner of the proposal was deleted and could be used to enlarge unit 3.

86 The Court was reminded that given the existing use rights for the proposal under the Environmental Planning and Assessment Act 1979, none of the usually applicable controls had force or effect. The Court must determine this appeal on the s 79C of the Act having regard to the amenity and habitability of this conversion to residential of what was apparently a mechanic’s workshop in the past.

87 The usual controls, such as Marrickville LEP 2001 and Development Control Plan 35 for urban housing and SEPP 65 could still be used as a guide but non-compliance with them was not necessarily fatal when considering the existing use.

88 The objectives of the residential 2B Zone are:

(a) to identify areas suitable for multi unit housing and residential flats to a maximum of two storeys in appearances, and
(b) to provide opportunities for non-residential development which is of a type and scale which is compatible with the surrounding area.

89 Both parties accept the bulk and scale of the existing building is an exception in the locality. The respondent says in effect it is about equivalent to three storeys now, and increasing that to five storeys makes it less compatible with the established character.

90 The applicant does step the fourth and fifth floors back from the street facades to reduce the visual impact of the extra floors but then there is the raised corner feature of unit 15 and the terrace of unit 24. It stands about a storey above the existing street facade and along Camden Street on units 16, 17 and 18 are about half a storey above the existing street-facade. The applicant says this is justified on the basis of Victorian streetscape practice, and the use of sheet metal materials on the extension versus masonry will break up the appearance to reduce its visual impact.

91 The respondent’s experts did not agree with this approach as the whole existing building emphasised the corner in the Victorian sense, increasing its visual impact only increased the lack of fit into the local character.

92 The Court agrees with respondent’s experts that the increased height and bulk of the building will be seen from within the immediate precincts of the proposal and can only increase the lack of fit. Partly relying on three storey and five storey buildings 150 m and further away to justify the increased height and bulk is not convincing to the Court. They only justify the retention of the existing non-conforming building.

93 Added to this the Court agrees with the respondent’s expert that the street facade treatment, although an improvement on the existing building, does not achieve a sympathetic treatment reminiscent of the terrace house streetscape adjoining. It is not necessary to copy the Victorian townhouse facades but the horizontal emphasis of the window and loggia and garage door bays does not achieve a comfortable fit.

94 The applicant said the width of the bay openings reflects the width of the terrace houses and would achieve an acceptable sympathy. It will break up the existing large masonry walls to some extent, but the Court agrees with the respondent that the facades will read as a whole and any relationship to a terrace house streetscape will be lost. The treatment could not even be considered a tasteful foil to the Victorian streetscape. I

95 In regard to the amenity of the proposal the Court does not see the privacy of the neighbours across the street as an issue sufficient for refusal. The separation distances across the street and the small windows and front yards and back yards provide reasonable privacy in a medium density situation.

96 There is some weight to the objectors’ and the council’s concern that the number of on-site car spaces is inadequate. Having an existing use right does not enable an adaptive re-use to provide insufficient facilities. The applicant’s survey of the local street carparking clearly leaves room for concern that it is not representative of the usual situation of congested parking attested to by the residents. The locality is going through change as these old industrial uses change to residential, and the renewal of King Street shops and restaurant area attracts new residents.

97 As the respondent’s evidence on council’s updated s 94 Plans revealed, car ownership in Marrickville is increasing above the census statistics used by the applicant.

98 The major weight of evidence that the Court has accepted is that on internal amenity. SEPP 65 is an appropriate guide to reasonable habitability of new medium and high density apartments. Many of the apartments in the proposal are so small it would be difficult to furnish them and have room to move. The loggias that are provided to act as private open space are really internal rooms in most cases with one wall of metal louvres. Their area has been increased to give compliance with one of the guide controls by subtracting space from the living rooms, thus creating the tightness of interior layout.

99 The apartment layout put forward by the applicant as a prototype from City of Sydney development control plan 1996 in Exhibit J has a living room 6 m by 4 m. That gives room for furniture. Most of the units with loggias, except units 6, 11 and 13 do not have living rooms of these dimensions and many labelled 3.1 m in Exhibit G actually scale 2.7 m wide.

100 The metal louvres to one wall of the loggias will reduce daylight inside considerably. Only those loggias on the second storey to College Street and the third storey to Camden Street that have openings to the roof will get adequate daylight to classify them as private open space, and those loggias rely on the installation of privacy screens, planted vegetation and obscured glass windows on the units above to obtain visual privacy.

101 One wonders if either would have privacy from conversations being overheard, or noisy activity on the terraces above, or the loggias below.

102 On the street level, three of the loggias and living room windows of three units are at street level or below it, giving them little or no privacy and vulnerability to vandalism, and the need to close louvres and curtains for privacy, thus cutting out daylight. SEPP 65 shows ways to avoid those consequences and little regard appears to have been given to that.

103 Cross-ventilation is another desirable design feature under SEPP 65 and only 45 %of the proposed units achieve that and some of them purport to achieve it by very small light shafts three storeys high, and are shown with a skylight covering it at roof level.

104 Ceilings 2.7 m high are suggested by SEPP 65 to promote good ventilation and natural lighting. The proposal does not incorporate that yet it is a large, tall industrial building with only a mezzanine in part of it so there are no existing upper concrete floor slabs to make construction of new floors difficult giving 2.7 m ceiling heights.

105 Where there is ventilation from one side of the unit only, SEPP 65 suggests kitchens and bedrooms should be no more than 8 m from a natural light source. Sixteen of the units have kitchens that exceed that distance and are located as a side cupboard and bench in the narrow corridors to the front door of each unit. The kitchen would always need electrical lighting. The bedrooms are a little better as they have large sliding doors to the living rooms.

106 The internal amenity of apartments is more important especially where they are small apartments such as is the proposal. More spacious apartments can allow poor design to have fewer impacts

107 The Court has concluded that overall the development is not good design. The exterior does not propose solutions that create an acceptable appearance in the streetscape and the increased bulk and height are not justified on the basis of existing use rights. The interior amenity of many units falls short of reasonable habitability under the guidelines best suited to the assessment of new apartments in an existing use rights situation, therefore the orders of the Court are:

1. The appeal is dismissed.
2. The exhibits are returned to the parties except Exhibits 1, 5, 7, 9, 11, 12, 13, 14, 15 and exhibits G, H and J.

___________________
K G Hoffman
Commissioner of the Court
rjs/ljr