Faim Pty Ltd v Canada Bay

[2004] NSWLEC 39

Land and Environment Court

of New South Wales

CITATION:	Faim Pty Ltd v Canada Bay [2004] NSWLEC 39
PARTIES:	Applicant: Faim Pty Ltd Respondent: Canada Bay City Council
FILE NUMBER(S):	11071 of 2003
CORAM:	Roseth SC
KEY ISSUES:	Development Application - Development Control Plan :- heritage impact
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	03/02/2004 to 05/02/2004
DATE OF JUDGMENT:	02/17/2004
LEGAL REPRESENTATIVES:	Applicant: Mr C McEwen, barrister instructed by Mr M Staunton Respondent: Mr P Jackson, solicitor

JUDGMENT:

- 13 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11071 of 2003

Roseth SC

Date

Faim Pty ltd

Applicant
v

Canada Bay City Council

Respondent

Judgment

Introduction

1 This is an appeal against the refusal by Canada Bay City Council (the council) of a development application to erect a six-storey building containing retailing on the ground floor and 35 apartments on five upper levels on lot A DP 446095, known as 50A Lyons Road, Drummoyne.

The site

2 The site is on the northeast corner of Lyons Road and Marlborough Street. It has an area of 1,459m2 and is now used as a service station. Adjoining to the east is the Sutton building, a retail building dating from 1918 that extends to Victoria Street and continues along Victoria Street to the north. Like most buildings of its era containing shops, it is two storeys, built to the street alignment with a parapet and an awning. Behind the Sutton building is a small retail complex around a courtyard called Sutton Place.

3 To the north the site adjoins a council carpark serving the Sutton Place shops. To the west it fronts to Marlborough Street. On the other side of Marlborough Street are the council’s offices in a two-storey building set far from the street. On the south side of Lyons Road are three heritage-listed buildings: the Oxford Hotel at the Victoria Road corner, the fire station and the Presbyterian Church. The Sutton building, the hotel, the fire station and the church are all items of local heritage.

The proposal

4 The applicant proposes to demolish the existing service station and erect a building containing 6 shops and 35 dwellings over two levels of basement parking. The major part of the building is four storeys, most of which is built to the street alignment, although at the east end, near the Sutton building, the proposed building is set back, and for a short length the fourth level is set back by about 2.4m. Near the Lyons Road Marlborough Street corner the building rises to six storeys.

5 The ground floor of the building contains six shops with a total net floor space of 250m2. The gross ground floor space is 366m2. As the upper floors have much larger areas, the ground floor includes a covered area without walls of about 340m2. The applicant’s experts called this area an “urban square”, while the council’s experts referred to it as an “under croft area”. There is also an area of about 210m2 at ground level that is open to the sky.

Relevant legislation, planning instruments and policies

6 State Environmental Planning Policy 65 (SEPP 65) applies to the proposal. It incorporates a publication Residential Flat Design Code.

7 Local Environmental Plan 1986 (LEP 1986) zones the site Business General 3(a), a zone that permits apartments in buildings that also have a commercial component. The LEP nominates a maximum Floor Space Ratio (FSR) of 2.25:1 for sites between 1,000m2 and 1,500m2.

8 The Comprehensive Development Control Plan (the DCP) applies to this site. It establishes several commercial precincts and places the site within Area 2. It establishes guidelines for development within Area 2, of which the following four are highly relevant to the application, ie

M1 Mixed-use development is encouraged in this area.
M2 Ground floor retail or other commercial use is required to activate the street frontage.
M3 Maximum building height is six storeys, designed as a significant corner element. Refer to Figure 7.2 for the building envelope.
M4 Development is to be built to the street edge, but to a maximum of 2 storeys.

9

I reproduce figure 7.2 from the DCP:

10 Figure 7.2 shows a building in cross section that has an awning over the Lyons Road footpath, is two-storeys high along the edge of Lyons Road and has a four-storey component set back from the street frontage by a distance approximately one-and-a-half times the width of the footpath, or about 5m. The six-storey component is not shown graphically. The guideline M3 suggests that the six-storey component should be a corner element (presumably of Lyons Road and Marlborough Street). Another way to describe the diagram is that it shows a two-storey podium with another two storeys set back about 5m from the line of the podium.

The issues

11 The council’s advocate, Mr P Jackson, submitted that there were three major issues in the case, namely

· the impact on the heritage significance of the Sutton building, the fire station and the church;

· the impact on the streetscape (or the urban design qualities of the proposal); and

· the internal amenity of the proposed building and the apartments.

12 In my opinion the first two issues are indivisible and I propose to deal with them as one.

Heritage and streetscape
The evidence

13 The council’s experts were Mr R Moore, a heritage architect, Ms D Laidlaw, a town planner, and Mr R Dickson, an architect, urban designer and landscape architect. The applicant’s experts were Mr R Staas, a heritage architect, Professor N Quarry, an architect, and Mr P LeBas, a town planner.

14 There was general agreement among all experts that the contemporary architectural expression of the proposed building was appropriate. However, behind this broad agreement there were nuances of disagreement. Mr Staas and Professor Quarry appeared to endorse an architectural expression unconstrained by the fact that the proposed building adjoins the 1918 Sutton building and faces three heritage items. According to Professor Quarry the proposed awning should not match the Sutton Place awning, for the earlier awning was designed for a different time and attitude and relates to the style of the first floor level and parapets above, without which mimicking the awning would create an architectural anachronism. Mr Moore and Mr Dickson agreed that the building should appear as a 21st century building but they considered that it should still respect its older neighbours. I assume that to respect means to fit in with the scale and to incorporate within the contemporary design some elements or characteristics of the older buildings. A building adjoining the Sutton building should therefore not look the same as one that is located 500m further west on Lyons Road.

15 Mr Staas and Mr Moore disagreed on the importance of the Sutton building. Mr Staas said that the building did not have landmark qualities. It was bland and repetitive in its scale and detail. Its value has been further reduced by painting the original brickwork and by unsympathetic shopfronts and awnings. Mr Moore disagreed. In his opinion, the Sutton building was a landmark, at least in the minds of the local community, for whom it represented the Drummoyne shopping centre.

16 Mr Staas and Mr Moore agreed that the height of the Sutton building’s parapet equated with the height of three storeys in a contemporary building. In order to continue the height along Lyons Road, the proposal could therefore be three storeys, not two as required by the DCP. However, Mr Staas and Mr Moore disagreed on the need to continue the parapet height of the Sutton building. According to Mr Moore, the proposed building should be built to the parapet level of the Sutton building, ie be of three storeys at the street edge. He thought that the building should not have any additional height above the three storeys and disagreed with the DCP’s suggested fourth level as well as a six-storey component at the corner. However, his main objection to the proposal was that it failed to continue the parapet line of the Sutton building.

17 According to Mr Staas there was no need to continue the parapet line. It was sufficient that the proposal continues a sense of scale that is compatible with the Sutton building, without slavishly following it as precedence. In his opinion, the use of deeply articulated slots between the item and the first portal, and the first and second protal, provides visual relief in the streetscape. The 3m setback to the fourth level adequately articulates the lower levels in their relationship to the height of the parapet of the Sutton building.

18 Thus the Court has before it the opinion of four experts who may be placed along a spectrum from little regard for heritage and context to major focus on heritage and context. Professor Quarry advocated a contemporary building that is unconstrained by the presence of older buildings near it. Mr Staas acknowledged that the proposal should relate to the heritage buildings near it, but he did not agree with the council’s experts that an essential element of that relationship was the continuation of the parapet height of the Sutton building. To follow the line of the Sutton building would be to slavishly mimic the past.

19 In Mr Dickson’s opinion the built form of the proposal should be in character with the surrounding area. Mr Moore, who was at the opposite end of the spectrum to Professor Quarry, considered that the proposal should continue the awning and parapet line of the Sutton building. However, he accepted that the two-storey podium in Figure 7.2 of the DCP should be three-storey.

Findings

20 Two questions arise out of the evidence:

· Does a satisfactory relationship between the proposal and the Sutton building require a building form such as suggested by Figure 7.2 of the DCP?

and

· Is the six-storey component of the proposal appropriate?

21 In my opinion, the continuation of the Sutton building’s parapet line at the street edge is an essential element in tying the proposal into its context. This finding does not depend on the Sutton building being an architectural gem. The Sutton building has existed for almost a hundred years, is in a prominent position and defines the scale of the shopping centre. It has urban design significance, quite independent of its value as a heritage building. Continuing its presence along the street edge is the most obvious way to preserve the existing scale. While there may be other ways to achieve this, the proposal has not found such a way. The architectural devices of portals, indentations and vertical elements have not succeeded in making the proposal a compatible (let alone respectful) neighbour to the Sutton building.

22 The requirement in Figure 7.2 of the DCP for a two-storey podium appears to have as its aim the continuation of the existing scale of the shopping centre. The agreement of the experts that the podium may be three-storeys high makes the requirement much less onerous, in the sense that it allows more floor space. The proposed development is contrary to Figure 7.2.

23 Turning to the question of the six-storey component, it seems to me that a building with even a small six-storey component would be out of scale with the Sutton building. If there were to be such a component, it would be best to keep it as far away from the Lyons Road frontage as possible. However, I note that the DCP suggests that the six-storey component should constitute a significant corner element. If this proposal had a podium such as suggested in Figure 7.2, and a six-storey component at the corner of Lyons Road and Marlborough Street, it would accord with the DCP. The applicant could rightly claim that it had followed the DCP precisely. In its present form, however, the proposal is in conflict with all aspects of Figure 7.2 of the DCP other than the six-storey component. It is incompatible with its context and therefore unacceptable.

24

After considering all the expert evidence, I find it useful to look at a photomontage of the proposal with the Sutton building in the foreground.

View of the Sutton building and the proposed development looking west

25 Does the proposal show any relationship with (or respect for) its older neighbour? Would a passer-by recognise that the new building has been designed to fit in with its context? Can one detect any sign that its design has had the benefit of the advice of three heritage experts?

26 It seems to me that the only part of the building that shows some level of compatibility is the small section that is on the street edge and approximately the same height as the Sutton building’s parapet. The overwhelming impression, however, is that of incompatibility. The new building could be anywhere. It is compatible only with itself.

Internal amenity
The evidence

27 Ms Laidlaw and Mr Dickson raised several criticisms of the internal amenity and functionality of the proposal:

· The shops were too small

· The under croft space (or urban square) was unpleasant and without obvious use

· Only 54% of apartments received 2 hours of sunlight in their living rooms

· Few apartments had good cross ventilation

· The room sizes were too small

· There was too much overlooking between apartments.

28 Mr LeBas rejected these criticisms. He pointed to similarly sized shops in other developments. He suggested improvements to the ground floor plan that could be implemented if this proposal were otherwise found to be acceptable. He pointed out that the solar access complied with the DCP’s requirements. He disagreed that the apartments had poor cross ventilation, though he did not support his opinion with any detail. He considered the room sizes adequate. He drew attention to the existence of privacy screens between balconies.

Findings

29 Mr Dickson is correct in saying that the shops are very small. Their area could, of course be increased by locating the rear wall further back. This would, however, increase the proposal’s FSR. (The FSR of the development slightly exceeds the permissible, so any addition would have to be justified.) In my opinion the small size of the shops is a negative feature but not sufficient to justify refusal.

30 Turning to the under croft area, I agree with Ms Laidlaw and Mr Dickson that this is an unpleasant space and without any apparent purpose. The only reason for not enclosing this space and putting it to some use (such as adding it to the shops) appears to be the applicant’s desire to put all the available floor space on the upper floors. Calling an inherently unpleasant space an urban square does not make it more pleasant.

31 The proposal’s performance on solar access is mediocre. It does not justify refusal but it indicates how much this proposal could be improved by better design. Performance on cross ventilation is also mediocre. (On this aspect I have accepted Mr Dickson’s evidence, since, in contrast to Mr LeBas’, it contained a detailed analysis.) In relation to room sizes, I note that some of the combined living/dining areas are about 4m by 4m. While Mr Dickson is right in saying that this size does not allow flexibility in furniture layout, the Residential Flat Design Code shows one-bedroom apartments with living/dining areas of similar size. As regards privacy between-dwellings, in my opinion, this is acceptable in a high-density development.

32 On balance, the weakest aspect of internal amenity is the ground floor covered space. While I accept that design changes foreshadowed by the applicant could improve this space, the improvement would be cosmetic. The problem is that the space has no purpose other than to be kept out of the floor space calculations. In addition, it adds to the bulk of the building.

A condensed history of the application

33 The history of the application is a relevant factor, since it involves the professional opinion of several experts in addition to those who gave evidence in the appeal.

34 The applicant lodged the development application in November 2002. The council notified nearby properties in November 2002, and again, following amendment of the proposal, in July 2003. A member of the council’s planning staff prepared a report recommending approval; however, the report appears not to have been endorsed by the officer’s superior and did not go to the council. The report that did go to the council in November 2003 recommended refusal and was accepted. By that time the applicant had lodged the appeal (in September 2003) against deemed refusal.

35 From the time of its lodgement in November 2002 to its refusal a year later, the application was assessed and commented on by several heritage experts as well as the council’s design review panel. The design review panel (constituted under SEPP 65) first looked at the proposal in November 2002. It commented that it was a fine looking development. The panel made also negative comments about lack of cross ventilation, poor orientation, lack of landscape plan and not enough contextual information.

36 When the panel next saw the proposal at the meeting of 17 March 2003, its comments were not greatly different. The panel liked the architectural language, but was still not satisfied with the orientation and cross ventilation of the apartments. It did not consider that its comments about landscaping had been addressed. The next indication of the panel’s opinion was a hand written note in the council’s file, dated 29 July 2003, to the effect that the proposal was satisfactory. There are no reasons, nor any indication of what changed.

37 Two heritage experts also assessed the proposal. A heritage consultant’s report accompanied the application. The council appointed its own consultant, Mr S Davies, to assess the application. In an undated letter received by the council on 26 June 2003, Mr Davies wrote that the proposal was too tall on the Lyons Road frontage and requires a podium and setback. Despite the fact that the proposal still did not include a podium and was just as tall, a month later Mr Davies declared himself satisfied on the grounds that the proposal has been provided with more vertical articulation to Lyons Road. In his opinion, this will provide support to the adjacent existing heritage building. He added that the proposal was also better resolved in design terms in relation to the concept of a podium in Lyons Road.

38 It is understandable if the applicant feels aggrieved that the council (and eventually the Court) accepted expert opinion contrary to the design review panel and Mr Davies. The Court has taken into consideration the panel’s and Mr Davies’ favourable comments. The question is: how much weight should be given to them?

39 I have given only minor weight to the comments of experts made during the assessment of the application, because I was not able to understand the basis on which they were made. For example, the design review panel’s notes do not include a mention of the Sutton building or Figure 7.2 of the DCP. Did the panel consider these? What information was before it when it concluded that the internal amenity was satisfactory? Despite my request, I received no evidence on this.

40 Similarly, it was not possible to follow Mr Davies’ change of opinion from first requiring a podium and a month later being satisfied with minor changes to the façade that remained far short of constituting a podium.

41 For the above reasons the appeal is dismissed.

Orders

1. The appeal is dismissed.

2. Development application to erect a six-storey building containing retailing on the ground floor and 35 apartments on five upper levels on lot A DP 446095, known as 50A Lyons Road Drummoyne is determined by refusal.

3. The exhibits are returned.

_________________

Dr John Roseth
Senior Commissioner