Frangelli v City of Sydney

[2015] NSWLEC 1051

Land and Environment Court

New South Wales

Medium Neutral Citation:	Frangelli v City of Sydney [2015] NSWLEC 1051
Hearing dates:	12 March 2015
Date of orders:	18 March 2015
Decision date:	18 March 2015
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	1. The appeal is upheld. 2. Development application D/2014/1113 for the change of use of an existing commercial unit to a residential apartment at 1/10 Earl Place Potts Point is approved subject to the conditions in Annexure A. 3. The exhibits are returned except for exhibits A, D, 1 and 4.
Catchwords:	DEVELOPMENT APPLICATION – Conversion of commercial unit to residential unit – Passive surveillance – Internal amenity
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sydney Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Tamara Barbara Frangelli (Applicant) City of Sydney (Respondent)
Representation:	Counsel: Mr M Fraser (Applicant) Ms F Berglund (Respondent) Solicitors: Mr S McDougall, Bray Jackson & Co (Applicant) Mr A Simpson, City of Sydney (Respondent)
File Number(s):	10897 of 2014

Judgment

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of consent to development application D/2014/1113 for the change of use of an existing commercial unit to a residential apartment at 1/10 Earl Place Potts Point (the site).

2. The site is located on the ground floor of a mixed use building, with another commercial tenancy on the ground floor, levels of residential units above, and car parking accessed from the rear of the building from Earl Street. There are four storeys on the eastern side with a communal roof terrace on the fourth level; there are seven storeys on the western side of the building and a private roof terrace on the 6th floor facing west. The proposed works include internal fit out for a two bedroom dwelling and provision of a home office and modification of the Earl Place façade to include opaque glazing and an entry to the home office. Following amendments to the plans, the proposed entry to the dwelling is from the lobby to the building, and the entry to the home office is from Earl Place. The subject site includes a courtyard on the ground floor of the internal lightwell, and the proposal includes a privacy sail over the southern part of the courtyard.

3. The Council contends that the proposed development should be refused because it removes the opportunity for passive surveillance to the street; the proposed development has a poor level of amenity due to lack of separation from the public domain and lack of outlook due to a desire to provide privacy and a lack of privacy within the proposed private open space; it worsens the building’s relationship with the public domain by removing the potential for a use that would provide passive surveillance to and activation of the street; that given those matters the site is not suitable for the proposed development; and that approval of residential development would not be in the public interest.

Evidence

4. The hearing commenced on site with a view, including a view of the locality. Expert planning evidence was provided on behalf of the applicant by Mr James Lidis, and on behalf of the Council by Mr Patrick Quinn. The Council’s bundle of documents includes two letters of support for the proposed development, from a real estate agent and a resident of Springfield Avenue.

5. The applicant’s bundle of documents includes a statement by Mr Bruce Loxton, the owner of the site. In that statement (exhibit B, tab 1) Mr Loxton states that he has owned the unit since 2008. He and his wife conducted a wholesale clothing distribution business from the property from August 2008 to November 2009. They spent $100,000 over two years to convert the property to retail sales, however the retail enterprise was a commercial failure. After closing the retail business they placed the premises for lease in November 2012. One inquiry was for a pasta bar to operate until 10pm weekdays and 11pm on weekends, however the managing agent indicated that a proposal to use the courtyard for customers to eat would be rejected because of the noise generated. He has a contract with the applicant for her to purchase the property subject to obtaining consent for the residential and home office use.

6. The applicant provided a statement (exhibit B, tab 10) in which she states that it is her intention that she and her partner, who are both architects, will live in the property and use the home office for working on private architecture projects. The applicant describes Earl Place in the following terms:

• “The main windows of the premises look onto rear entrances of nightclubs and other businesses, and there are no trees or even other foliage within sight within Earl Place;

• The street acts as a back thoroughfare for taxi drivers and other vehicles using Earl Place as a “rat run” to avoid the slow-moving traffic on the main streets of Kings Cross;

• At night, Earl Place is not a pleasant place to be looking upon when the street is darker and the behaviour of human beings becomes darker;

• There is a wonderful, secluded, private, safe and large light-filled courtyard, which has obvious potential to become not just a safe haven, but a wonderful hidden gem; it just needs some good design, something I am excited about implementing.”

Planning controls

7. The site is in the B4 Mixed Use zone under the Sydney Local Environmental Plan 2012 (LEP). The aims of the LEP include in cl 1.2(2):

(a) to reinforce the role of the City of Sydney as the primary centre for Metropolitan Sydney,

(b) to support the City of Sydney as an important location for business, educational and cultural activities and tourism,

…

(d) to encourage the economic growth of the City of Sydney by:

(i) providing for development at densities that permit employment to increase, and

(ii) retaining and enhancing land used for employment purposes that are significant for the Sydney region,

(e) to encourage the growth and diversity of the residential population of the City of Sydney by providing for a range of appropriately located housing, including affordable housing,

…

(h) to enhance the amenity and quality of life of local communities,

8. The objectives of the B4 zone, to which regard must be had (cl 2.3(2)), are:

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To ensure uses support the viability of centres.

9. The proposed use is an innominate use, permissible with consent.

10. The proposal includes alteration of the façade on Earls Place, and cl 6.21 applies:

6.21 Design excellence

(1) The objective of this clause is to deliver the highest standard of architectural, urban and landscape design.

(2) This clause applies to development involving the erection of a new building or external alterations to an existing building on land to which this Plan applies.

(3) Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence.

(4) In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters:

(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain,

(c) whether the proposed development detrimentally impacts on view corridors,

(d) how the proposed development addresses the following matters:

(i) the suitability of the land for development,

(ii) the existing and proposed uses and use mix,

(iii) any heritage issues and streetscape constraints,

(iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,

(v) the bulk, massing and modulation of buildings,

(vi) street frontage heights,

(vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity,

(viii) the achievement of the principles of ecologically sustainable development,

(ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network,

(x) the impact on, and any proposed improvements to, the public domain,

(xi) the impact on any special character area,

(xii) achieving appropriate interfaces at ground level between the building and the public domain,

(xiii) excellence and integration of landscape design.

…

11. The Sydney Development Control Plan 2012 (the DCP) applies. Section 3 General Provisions includes the following objectives and provisions:

Section 3.2 Defining the public domain

...

3.2.2 Addressing the street and public domain

A person’s experience of the city will be formed by the public domain as well as private developments which adjoin the public domain. It is important that development adjacent to the public domain be attractive, comfortable, safe, functional and accessible for all. The public domain and pedestrian environment should be characterised by excellence in design, high quality materials and well integrated public art.

Objectives

(a) Ensure that development contributes to the activity, safety, amenity and quality of streets and the public domain.

(b) Present appropriate frontages to adjacent streets and public domain in terms of scale, finishes and architectural character.

(c) Provide legible and accessible entries from the street and the public domain.

(d) Reinforce street edge conditions that significantly contribute to the characteristics of a heritage conservation area.

(e) Reinforce Central Sydney’s strong definition of streets and the public domain aligned with property boundaries.

(f) Ensure that in areas outside of Central Sydney new development relates to

neighbouring buildings that define the street and public domain.

(g) Minimise and ameliorate the effect of blank walls (with no windows or entrances) at the ground level.

…

Section 3.13 Social and Environmental Responsibilities

3.13.1 Crime prevention through environmental design

Objective

(a) Provide a safe environment and minimise opportunities for criminal and

anti-social behaviour.

Provisions

(1)Active spaces and windows of habitable rooms within buildings are to be located to maximise casual surveillance of streets, laneways, parking areas, public spaces and communal courtyard space.

…

12. Section 3.2.3 provides for Active frontages. The subject property is not on the Active frontages map in the DCP and accordingly there is no requirement in section 3.2.3(1) that an active frontage be provided.

13. Section 4 Development Types includes the following objectives and provisions:

4.2 Residential Flat, Commercial and Mixed Use Developments

…

4.2.3 Amenity

Objective

Ensure that residential amenity is enhanced with landscaping, private and common open space, sun access, ventilation and acoustic privacy.

…

4.2.3.10 Outlook

(1) Provide a pleasant outlook, as distinct from views, from all apartments.

(2) Views and outlooks from existing residential development should be considered in the site planning and massing of new development.

Note: Outlook is a short range prospect, such as building to building, while views are more extensive or long range to particular objects or geographic features.

4.2.3.11 Acoustic privacy

(1) A Noise Impact Assessment prepared by a suitably qualified acoustic consultant may be required when submitting a development application for commercial and retail uses which may affect the acoustic privacy of the adjacent residential use.

(2) Where necessary, a residential development is to include acoustic measures to reduce the impact of noise from existing or planned external sources (for example busy roads, adjoining industries, live music venues and public parks and plazas in which people may congregate or host live music or events).

(3) Development is to incorporate measures that reduce the entry of noise from external sources into dwellings.

…

4.2.5.4 Residential uses on the ground and first floor

Objectives

(a) Design ground floor apartments with a similar appearance as two storey terrace houses.

(b) Balance ground floor dwelling privacy with surveillance to the street.

(c) Activate the street with individual building entries.

(d) Create a fine-grain and varied rhythm of built form along the street.

(e) Create opportunities at the street level for planting or landscaped areas and visually extend open areas at the lower levels.

Provisions

(1) Ground floor residential uses are to be provided with a minimum of:

(a) 3m primary building setback, except where a zero lot line has been established by existing adjacent development;

(b) 4m setback from the site boundary to the glass line enclosing an internal space at the ground and first floor; and

(c) 3m wide deep soil landscape setback as a private front garden. The garden may be located up to 1m above the street level.

(2) Ground floor private open space facing the street is to be provided as a deck up to 2m deep.

(3) Ground floor level is to be a maximum of 1.0m above the adjacent public domain level. On a sloping site step the ground floor levels to maintain an optimal relationship to the street for each dwelling.

(4) Sills or opaque treatments to ground floor windows are to be a minimum of 0.8m above ground floor level to provide privacy.

14. It was common ground that the adjoining building at 5 Earl Place establishes a zero lot line; there is a 1m wide footway along the eastern frontage of the building.

15. Clause 30 of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) requires consideration of design quality when evaluated in accordance with the design quality principles in cll 7-18, and the Residential Flat Design Code. The Council relies on principle 7: Amenity, and principle 8: Safety and security.

Consideration

16. The site view confirmed the description of Earl Place in the applicant’s statement. The properties on the opposite side of Earl Place are generally the rear of premises fronting Darlinghurst Road; there is a development application under consideration for 16 Earl Place which is opposite the subject site. The planners accepted that some patrons of the nearby nightclub further south at the end of Earl Place may walk past the site. The adjoining commercial tenancy at 10 Earl Place is used by a shoe business for storage of stock, and the windows of those premises on Earl Place are covered by metal roller shutters, which were down at the time of the view.

17. The residential units above the subject premises have balconies facing either Earl Place or Earl Street, those on Earl Place having fixed glazing and louvres above. There are 15 windows for the units above that look out on to the internal courtyard at the rear of the subject premises. The planners agreed that once the shade is erected only the kitchen windows for three units facing Earl Street will be able to overlook directly into the courtyard, and the shadecloth will prevent overlooking into the interior of the subject premises. It was common ground between the planners that there is no direct sunlight coming into the courtyard other than for the morning in mid summer.

18. It was not in dispute that the existing floor to ceiling height for the premises is 2.35m, and that this is less than the required 3.6m in the DCP for ground floors for commercial tenancies. Mr Quinn accepted that this would be a constraint on some commercial uses of the subject premises. That is supported by Mr Loxton’s statement where he noted comments from some potential commercial purchasers that the ceiling height was too low for their intended use. The proposed floor to ceiling height is 2.75m. The proposed treatment for the Earl Place frontage for that part of the premises related to the residential use is for 800mm high upstand, opaque glass walling to 1.8m, and high level security and acoustic louvres above that. The proposal for the home office is that the glazing be clear rather than opaque, and that the entry door to the home office also be clear.

19. Mr Quinn’s evidence was that achieving an acceptable balance between passive surveillance of the street and internal privacy of the proposed dwelling is challenging given the lack of separation from the public domain and the lack of opportunity to vary the floor level between the internal area of the dwelling and the public domain. Mr Quinn accepted that the residential apartments above the subject premises would provide for passive surveillance onto Earl Place. Mr Lidis was of the opinion that the home office, which occupies about half the Earl Place frontage, enables the opportunity to provide for passive surveillance, and that in any event the site is located in what is effectively a lane and it is more desirable to provide for internal privacy than passive surveillance.

20. The planners disagreed as to the level of internal amenity. In Mr Quinn’s opinion the proposal does not achieve an acceptable level of amenity, because the privacy screening to Earl Place would remove any outlook towards the public domain; the courtyard is overlooked by a number of dwellings and communal open space areas within the development; the dwelling and its open space have limited to no direct solar access which is exacerbated by the proposed sail cloth to provide privacy; the configuration of the existing building provides no separation between the proposed dwelling and the public domain which is of particular concern given the site’s proximity to the Kings Cross entertainment precinct including a nearby nightclub located in Earl Place; and the revised proposal provides the main dwelling entry via an enclosed vehicle parking/loading area which provides a poor sense of entry which would detract from the amenity of the dwelling. Mr Lidis considered that the dwelling would provide a reasonable level of amenity in the context of the site in a highly urban area; the focus for future residents would be on the internal spaces including the courtyard and so there is no need to provide for outlook to Earl Place. The private open space would have good amenity and reasonable privacy to both occupiers of the proposed dwelling and other occupiers of the building. The building overall complies with the SEPP65 requirement of 70% of dwellings to receive at least 2 hours of sunlight.

21. Mr Quinn conceded that the present use of the tenancy contributes very little to the public domain, however in his opinion use of the site as a dwelling would remove the opportunity for an active use on the site in the future. The desire to provide visual privacy to the dwelling would close off the site from the public domain and that would not be an appropriate interface between the site and the public domain.

22. It was not in dispute that the proposed development meets the numerical requirements of section 4.2.5.4 of the DCP. The Council’s position is that the proposed development does not achieve an appropriate interface between the building and the public domain, as required by cl 6.21(4)(d)(xii) of the LEP, or contribute to the activity, safety, amenity and quality of streets and the public domain, as required by section 3.2.2 of the DCP. The Council submits that Earl Place is a street with foot traffic, rather than a rear lane, and so passive surveillance is important, and that in attempting to balance passive surveillance with privacy the site is not suitable for the proposed development. The home office is a narrow space with no privacy and only 13.49sqm, and would have limited use. In terms of amenity, the proposed development would not provide “appropriately located housing” as reflected in cl 1.2(2)(e) of the LEP, because there would be no direct sunlight in the courtyard for most of the year; the entry to the dwelling is through the loading dock; achieving visual privacy requires opaque glass; the louvres would have to be closed to obtain acoustic privacy on a street where people will be walking past at night; and the shadecloth required to obtain privacy in the courtyard would further reduce light. Ultimately the site is not suitable for the proposed development because appropriate internal amenity cannot be achieved, it is not in the public interest to remove the passive surveillance that would come with commercial use, and the interface with the public domain is inappropriate.

16. I accept the Council’s submission that the application must be assessed against the applicable planning controls, and that the individual interests of Mr Loxton and the applicant would not override the public interest reflected those controls. The lay evidence of Mr Loxton supports the proposition that commercial use of the premises has been problematic, and at its highest is suggestive that the reduced floor to ceiling height and the location have been constraints on some possible commercial uses. I accept that the size and configuration of the proposed home office might limit its use, however based on the applicant’s evidence as to her proposed use of that space, it would have some use.

17. I accept the agreed evidence of the planners that passive surveillance is important in discouraging loitering or other anti-social behaviour, as reflected in the objective in section 3.13.1 of the DCP, particularly in the context of the site’s location close to the entertainment precinct of Kings Cross. I also accept that there is an issue, as the Council submits, in achieving a balance between passive surveillance and privacy for the occupants of the proposed dwelling. However, I am satisfied that the conversion of this unit to residential uses would not materially limit the opportunities for passive surveillance, which would continue to be available from the apartments on the floors above, and through the home office use. The opportunity for passive surveillance through the use for residential purposes would differ primarily in nature and timing when compared with a commercial use that would not necessarily operate after business hours. In terms of amenity, the restricted access to sunlight in the courtyard would be diminished by the use of the shadecloth for privacy, however that is not the only open space available to the future occupants given the common open space on the roof terrace.

18. The LEP seeks to achieve an appropriate interface at ground level between the building and the public domain, and to provide a range of appropriately located housing. While there are clearly some constraints, I am satisfied that when considered in its context the proposed development does provide an appropriate interface with the public domain and a level of amenity that meets the aim of the LEP, and that it is appropriate to approve the proposed development subject to the conditions agreed between the parties.

Orders

26. The orders of the Court are:

1. The appeal is upheld.

2. Development application D/2014/1113 for the change of use of an existing commercial unit to a residential apartment at 1/10 Earl Place Potts Point is approved subject to the conditions in Annexure A.

3. The exhibits are returned except for exhibits A, D, 1 and 4.

Linda Pearson

Commissioner of the Court

10897 of 2014 - Annexure A (37.7 KB, pdf)

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Decision last updated: 18 March 2015