Ghosn v Council of the City of Sydney

[2020] NSWLEC 1174

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ghosn v Council of the City of Sydney [2020] NSWLEC 1174
Hearing dates:	18 March 2020
Date of orders:	14 April 2020
Decision date:	14 April 2020
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders that: (1)   The appeal is dismissed. (2)   Development application D/2018/410 is refused. (3)   The exhibits are returned with the exception of Exhibits A and C.
Catchwords:	DEVELOPMENT APPLICATION – restaurant – alterations – heritage conservation – local amenity
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Sydney Local Environmental Plan 2012
Texts Cited:	Sydney Development Control Plan 2012
Category:	Principal judgment
Parties:	Habib Ghosn (Applicant) The Council of the City of Sydney (Respondent)
Representation:	Counsel: V Conomos (Solicitor) (Applicant) J Reid (Respondent)   Solicitors: Conomos Legal (Applicant) The Council of the City of Sydney (Respondent)
File Number(s):	2019/214163
Publication restriction:	No

Judgment

1. COMMISSIONER: On 5 March 2019, the Council of the City of Sydney (‘Council’) granted consent to a development application (‘DA’) referenced as D/2018/1410, subject to conditions. The DA sought approval for fit-out and use of a restaurant, certain nominated trading hours, and a maximum patron capacity of 136 persons. At the centre of the applicant’s dispute with Council are certain conditions imposed by Council in this consent.

2. The Class 1 application to the Court listed the type of claim as an appeal under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). Appeals under s 8.9 are concerned with applications for the modification of a development consent (under s 4.55 of the EPA Act). The matter at hand does not involve a modification application. During the hearing, and with the consent of the Council, leave was granted to amend the application to an appeal under s 8.7 of the EPA Act, an appeal against Council’s determination of the DA.

3. The matters in dispute related to particular conditions in the Council’s consent to D/2018/1410, and the contentions raised in the proceedings centre on this dispute. Nonetheless, the matter comes before the Court “de novo” (s 39(3) of the Land and Environment Court Act 1979 (LEC Act)).

The site and context

4. I rely on the applicant’s Statement of Facts and Contentions (‘SOFAC’ - filed with the Court on 23 August 2019), and Council’s Amended Statement of Facts and Contentions in Reply (Ex 1), for much of the material in this and the following two descriptive sections.

5. The site is known as 207 Darlinghurst Road and 19 Farrell Avenue, and is situated on the south western corner of these two streets in Darlinghurst. The site’s legal description is Lots 2 and 3 in DP 1210543.

6. The site area is 311.7m2, and has a frontage of approximately 14.8m to Darlinghurst Road and 19.9m to Farrell Avenue. The site is occupied by a three-level building, commonly described in this hearing as a “villa”. The villa has a formal entry off Darlinghurst Road via a front courtyard. The slope of the site, falling away from Darlinghurst Road, causes the building to have a partially subterranean basement level. In turn the building presents as a 2-storey frontage to Darlinghurst Road and a 3-storey frontage to Farrell Avenue.

7. The existing building is not listed as an item of heritage significance under the Sydney Local Environmental Plan 2012 (‘LEP’). However the site falls within the Rosebank Conservation Area (C14) under the LEP, and the building is identified as “neutral” in the Building Contributions Map at Map Sheet 022 within Sydney Development Control Plan 2012 (‘DCP’).

8. The surrounding area comprises a mixture of development types. To the immediate west of the site is a seven-storey residential apartment building that was approved under D/2012/297 (see [13]) and which has frontages to Kirkton Road and Farrell Avenue. To the north of the site on the opposite side of Farrell Avenue is a 3-storey mixed use building, comprising ground level retail and café uses with commercial uses above. Adjoining the site to the south is the Darlinghurst Medical centre, which is contained within a four (4) storey building with a recessed fifth (5) storey. To the east of the site on the opposite side of Darlinghurst Road is a 14-storey shop-top housing development with ground level retail, above-ground multi-storey parking, commercial and residential apartments.

The proposal

9. The application proposes:

• Fit-out and use as a restaurant including: part removal of sandstone walls, installation of an accessible entry from the Farrell Avenue footpath, partial removal of internal floor for installation of an internal stairway linking the ground floor and below ground level, cut-out void to incorporate a new stairway and pedestrian entrance from Farrell Avenue that descends to the below ground level, a commercial kitchen, a licenced bar area, toilets on the below ground level and seating areas.

• Hours of operation: for indoor area: 8:00am – midnight (subject to a trial period); and for outdoor area: 7:00am – 10.00pm (subject to a trial period).

• Patron capacity of 136 (the plans indicate some 58 seats upstairs and 78 seats downstairs).

Planning provisions

10. The site is located within the LEP’s B4 – Mixed Use zone. The relevant zone objectives 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.

11. Restaurants are permissible with consent in the zone. In regard to development standards within the LEP, it is noted that this, essentially, fit-out proposal does not involve any increase in floor space ratio, or building height. Relevant provisions include cl 5.10 relating to heritage conservation, and cl 6.21, relating to design excellence.

12. The site is located in the DCP’s Darlinghurst West locality. The character statement identifies Darlinghurst West as “a vibrant and diverse area, energised by its unique café and restaurant opportunities, and the quieter residential areas and heritage buildings within a landscaped setting” (DCP, section 2.4.12). Other aspects of the DCP arise in the evidence and are considered relevantly below.

Background

13. The SOFAC (p5) provides the following (uncontested) historical material regarding two previous development consents of relevance. They are referenced as D/2012/297 and D/2016/236:

“A previous development application D/2012/297 relating to the site and the adjoining lot to the west was approved on 12 November 2012 for the construction of a residential flat building on the corner of Farrell Avenue and Kirketon Road. The approved development, as amended, also included restoration works to the building on the subject site.

…

On 7 April 2016 development consent (D/2016/236) was granted for the site, for use and fit-out of the lower ground floor for a licensed restaurant with a new glass sliding door to the entrance. Condition 2 restricted the hours of operation to between 8am and 11pm Monday to Sunday, with a one-year trial period between 11pm and 12 midnight. Condition 11 restricted the patron capacity to 98. Works under this development consent have not been undertaken and the approved restaurant use has not commenced.”

Lay submissions

14. A number of lay submissions were made objecting to the proposal, including oral submissions to the hearing during the site view. The concerns can be summarised as follows:

• That a new opening to Farrell Avenue, in near proximity to residential areas further along this street and in Kirketon Road, would result in noise, and other (alcohol-related anti-social behaviour) annoyance to local residents as patrons enter and leave the premises (there was history to such problems with a previous night club use on the site).

• That there would be unmet additional parking demand generated by the premises, in a location already experiencing parking deficiencies.

• General amenity, health and safety concerns associated with food premises including waste and odour management light spill and fire risk.

• Each of these concerns was exacerbated due to an increase in patron numbers from 96 to 136 (having regard to D/2016/236 (at [13])).

• The examination under late night trading hours should identify the proposal as a “high” rather than “low” impact activity.

Issues

15. At the centre of the dispute between the parties is that component of the proposal involving: (1) cutting out of part of the slab which supports the front courtyard (northern or right hand side when viewed from Darlinghurst Road) to provide an open area as part of the basement component of the restaurant and, (2) a new opening in the northern wall to the development, providing a new entry off Farrell Avenue. In its determination of the subject DA, the Council had imposed conditions that prevented these aspects of the proposal going ahead. The relevant condition was Condition 2, as follows:

“CONDITION 2 (DESIGN MODIFICATIONS)

The design of the building must be modified as follows:

(a) The demolition works to the courtyard slab and northern wall are not approved. The courtyard slab and existing northern wall are to be retained;

(b) The void, entry stairs, entry gate, and sliding doors are to be deleted.”

16. Ms Reid indicated Council’s central concern was that previous heritage conservation benefits obtained under D/2012/297 (at [13]) not be eroded with the current application. Council was concerned with adverse heritage conservation impacts, and non-compliance with design excellence requirements. A suggested lack of detailing of the particulars of the proposal was raised.

17. The applicant’s central arguments were that the proposal would contribute positively in the streetscape and assist significantly in orderly and economic use of the site. Concerns regarding heritage were adequately addressed, with the proposal exhibiting design excellence.

18. Photo 1 taken from Darlinghurst Road provides a view of the existing wall to Farrell Avenue with the villa behind – a viewline central to the contested matters in the hearing. The new entry would be located in front of the building line near the black light pole in the foreground.

Photo 1 View of existing setting from the north-west and Darlinghurst Rd

Source: Council assessment report Ex 4 Tab 8 p3

19. The experts providing evidence in this matter are as listed in the table below:

Expert	Expertise	For
S Davies	Heritage	Applicant
P Misra	Heritage	Respondent
B Craig	Planning	Applicant
J Royall	Planning	Respondent

Considering lay submissions

20. Initially I will consider the submissions from objectors. I refer to Council’s assessment report for this DA (‘assessment report’) to assist me here (Ex 4 behind Tab 8).

21. In regard to the specialist fields of health and safety (including fire), and waste management (including odours and the like), I accept the findings of Council’s specialists as documented in the assessment report. Similarly I agree that restaurants in these mixed use settings with good public transport access cannot be expected to accommodate patron parking needs on-site.

22. I have reviewed the provisions at section 3.15 of the DCP in regard to Late Night Trading Management. I accept that the proposed restaurant use could not be properly considered a Category A (high impact) premises under the provisions and accept the position in the assessment report that the premises be considered a Category B (low impact) premises under the DCP.

23. The site falls within a Local Centre Area in the Late Night Trading areas map under the DCP (Sheet 022). The provisions at Table 3.7 of the DCP provide specific trading hour provisions for Category B premises in Local Centre Areas. Proposed trading hours are in general alignment with these provisions.

24. In regard to noise impacts, I note that Council’s relevant specialists were satisfied with the acoustic study prepared for the proposal, after further information requests were accommodated by the applicant (Ex C, folio 107, behind Tab 6).

25. I accept that a restaurant in this area of Darlinghurst Road is the type of development which would be expected, given the local setting, zoning and status as an identified late night trading locality. I have had regard to the previous consent applying to the site which would allow some 98 patrons in the basement area. There seems to be some 20 less seats proposed downstairs with this application. The applicant indicated a willingness to direct all departing downstairs patrons (except those with a disability) to the new opening to Farrell Avenue (and thus further from the residential areas to the west than the existing). However Council saw this as a difficult condition to apply. I note that the planning experts confirm that a Farrell Avenue entry at the proposed location would be “less impactful” than the existing entry, as the existing is closer to the residential areas (Ex 2, par 56).

26. My conclusion on the lay objections is to find that there would be expected to be some annoyance to nearby residents from time to time, in this locality, from restaurant patrons, and perhaps more so patrons from other local premises more dependent on alcohol sales. This is disadvantageous to these residents (notwithstanding authorities’ management attempts) but seems to me comes with all the advantages of living in this part of Sydney. Overall the new opening to Farrell Avenue is not seen to be unreasonable on amenity grounds, with Council’s normal provisions regarding late night trading in place.

Heritage conservation

Policy provisions

27. The experts gave emphasis to certain policy provisions including cl 5.10 of the LEP concerned with heritage conservation. Subclause (1) outlines the clause objectives, which are (relevantly) as follows:

(a) to conserve the environmental heritage of the City of Sydney,

(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views

…

28. Clause 5.10(4) is concerned with the effects of a proposed development on heritage significance, and provide (relevantly) as follows:

The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned …

29. Section 3.9.6 of the DCP is concerned with heritage conservation areas (‘HCA’) and provides relevantly as follows:

“Buildings and sites within heritage conservation areas are identified on the Building contributions map as being contributory, neutral or detracting to the character and heritage significance of the heritage conservation area.

…

New development in heritage conservation areas must be designed to respect neighbouring buildings and the character of the area, particularly roofscapes and window proportions. Infill development should enhance and complement existing character but not replicate heritage buildings.

(1) Development within a heritage conservation area is to be compatible with the surrounding built form and urban pattern by addressing the heritage conservation area statement of significance and responding sympathetically to:

(a) topography and landscape;

(b) views to and from the site;

(c) significant subdivision patterns and layout, and front and side setbacks;

(d) the type, siting, form, height, bulk, roofscape, scale, materials and details of adjoining or nearby contributory buildings;

(e) the interface between the public domain and building alignments and property boundaries; and

(f) colour schemes that have a hue and tonal relationship with traditional colour schemes.

(2) New infill buildings and alterations and additions to existing buildings in a heritage conservation area are not to be designed as a copy or replica of other buildings in the area, but are to complement the character of the heritage conservation area by sympathetically responding to the matters identified in (1)(a) to (e) above.

…

(4) Development within a heritage conservation area is to be consistent with policy guidelines contained in the Heritage Inventory Assessment Report for the individual conservation area.”

30. As indicated above, the DCP’s Building Contributions map shows the site as “neutral”. Section 3.9.8 of the DCP is concerned with “neutral” buildings, and provides relevantly as follows:

“Neutral buildings are buildings that do not contribute nor detract from the significant character of the heritage conservation area. Neutral buildings are: • From a significant historical period, but altered in form, unlikely to be reversed; • sympathetic contemporary infill; or • from a non-significant historical period but do not detract from the character of the Heritage Conservation Area.

…

(3) Alterations and additions to a neutral building are to:

(a) remove unsympathetic alterations and additions, including inappropriate building elements;

(b) respect the original building in terms of bulk, form, scale and height;

(c) minimise the removal of significant features and building elements; and

(d) use appropriate materials, finishes and colours that do not reduce the significance of the Heritage Conservation Area.”

31. The controls applying to contributory buildings are at Part 3.9.7 of the DCP, and as would be expected provide more rigorous requirements in regard to any changes to the building.

Evidence

32. Relevantly, the heritage experts agreed that: (1) the existing development is a “good example of a mid-Victorian villa from the key period of development in Darlinghurst Road”, (2) restoration of the villa, related to D/2012/297, was used as an incentive to gain non-compliant height and floor space for the apartment development to the rear of the site associated with that consent, and (3) the restoration works related to D/2012/297 are “extensive”, and have the effect of “significantly enhancing” the villa’s contribution to the HCA (Ex 3, par 15).

33. Nonetheless Mr Davies, when questioned by myself, submitted that, mindful of the definition included in the DCP, it would be unreasonable to consider the villa a “contributory building”.

34. A further agreement from the heritage experts, evidenced in the joint report itself, was that there was insufficient information on the particulars of both the proposed landscaping and the intended openings. A point of departure in regards to agreement occurred with the further information supplied by the applicant, ultimately in amending plans at Ex C (for which leave was granted during the hearing). Mr Davies believed there was now sufficient information on particulars, whereas Ms Misra believed there was not.

35. Ms Misra believed there was too much uncertainty on the particulars and on the basis of the available material, and as I understood it, more generally was of the view that (Ex 3):

“19. The proposed void reduces the surface area available for potential landscaping in a traditional style at the entry level and proposes landscape in the basement. The basement planting is out of character for the villa and is not a positive enhancement.

20. Basement access in front of the villa is uncharacteristic for the villa typology. The proposed basement access forward of the dwelling line further accentuates the presence of a detracting and unsympathetic basement extension.”

and

“22. There are no positive heritage outcomes from the proposal or any heritage conservation reasons behind the proposed void and access to the basement. The proposal does not respect or compliment the architectural qualities of the villa and does not enhance the contribution of the villa to the HCA. The proposal does not adequately achieve the objectives set out in SLEP 2012 section 5.10 (1) (a) and (b)”

36. Mr Davies believed the proposal would not diminish the ability to view and understand the building in the streetscape. He saw the additional landscaping as enhancing the frontage, with the proposed void in the courtyard not readily apparent for those passing the building in Darlinghurst Road. Mr Davies gave weight to the capacity of the proposed changes to “activate” the building, which he saw as having some heritage benefits (Ex 3, par 26):

“The proposal provides the opportunity to more effectively access the basement which is an important aspect of the site. The retained front villa has been vacant from many years and the opportunity is provided by the application to make the site more attractive the tenants and provide more visitors to the building and basement. The activation and revitalisation of heritage places is an important part of the economic well-being of these places and the proposal does this without detriment to original fabric or an appreciation of the history of the site:.

37. In oral evidence there was some attention to the particulars of the opening to Farrell Avenue. There related areas of inquiry were: the entry door to the basement area, the presentation of the Farrell Avenue balustrade and related landscaping which would be located on the courtyard above and in part present to Farrell Avenue. The points of examination in the oral evidence included: (1) the sufficiency of the particulars on the workings of the door, and (2) whether the particulars of the workings of the door (when finalised) were likely to result in a horizontal misalignment of the balustrade and landscaping which adversely affects the viewline to the villa from Darlinghurst Road (the viewer position indicated in Photo 1 is representative of the viewline Council is concerned with).

Consideration

38. The determinative questions for this matter can be synthesised down to two, both of which are centred on heritage conservation but also involved some planning evidence. They are: (1) whether the opening up of the void (courtyard and doorway opening to Farrell Avenue) is supportable in principle, and (2) whether the particulars of the “opening up” are sufficient to approve the development application.

Opening up the void as a matter of principle

39. Ms Royall saw a negative in the activating of Farrell Avenue (through the new doorway) in this location as “Farrell Avenue is not an appropriate interface with the approved use and the public domain” (Ex 2, par 47). There was a related concern of the potential for this to become the major restaurant entrance. I have noted that agreed conditions are suggested to alleviate concerns that the main entrance would be located otherwise than through the formal entry off Darlinghurst Road. I understand both of these points to be, otherwise, related to potential amenity impacts for local residents, which I have considered above. Ms Misra’s heritage concerns included the Farrell Avenue doorway opening.

40. I prefer Mr Craig’s position to that of Ms Royall, and agree that the opening up of the blank wall would be a positive step in street activation, particularly for those walking along Darlinghurst Road, but generally in this zone and DCP locality. In regard to heritage conservation, it needs to be noted that the Farrell Avenue wall, within which the new doorway opening would be located, comprises relatively recently undertaken works, and is not part of the villa’s heritage fabric.

41. Sensitively undertaken, I agree with the applicant’s evidence that the entry can, as people walk along Darlinghurst Road, attract the eye and add to the interest in the villa, including with the potential to look inside and observe the subterranean building elements. Again, sensitively undertaken, the opening could assist in heritage conservation appreciation. As put by Mr Davies “activation and revitalisation of heritage places is an important part of the economic well-being of these places” (Ex 3, par 26).

42. I also agree with the applicant with respect to the opening up of the courtyard pad off Darlinghurst Road to allow the basement component of the restaurant to be, in part, open to the air. The opening would not be visible from the street, and there is good capacity for landscaping improvements to the front courtyard with the proposal, to the benefit of the local streetscape, and passers-by, and those entering the restaurant.

Are the “particulars” of the changes sufficiently clear?

43. There was considerable questioning in the hearing about the particulars of three aspects of the opening to Farrell Avenue: (1) the doorway, (2) balustrades, and (3) landscaping. I note that drainage was also raised. Certain particulars were evidenced in Ex C on each, and a further “indicative” plan was provided in regard to landscaping (Ex D).

44. As indicated, Council’s core concern, as expressed by Ms Reid, was that the heritage conservation benefits recently gained in regard to the villa not be diluted with this application. Ms Reid submitted that too many uncertainties remained.

45. Whereas Mr Conomos argued that the uncertainties were now addressed, including by way of now proposed Condition 2 which provides, in part, as follows:

“(2) DESIGN MODIFICATIONS

The design of the building must be modified as follows:

(a) Details of the new balustrades are to be provided. The details are to be

provided in a 1:50 scaled drawing.

(b) A 1:50 scaled drawing is to be provided of the door along Farrell Avenue.

Details are to include finish, design, detailing, mechanism and height. No

section of the door is to project onto the public domain.

…

(d) Drainage details of the exposed section of the basement are to be provided.

…

The modifications are to be submitted to and approved by Council’s Area Planning Manager prior to the issue of a Construction Certificate.”

46. Mr Conomos also emphasised that the building was not a heritage item, nor even a contributory item in the HCA. Rather it was a neutral item. His point was that care was required to ensure a balanced evaluation of the proposal given its relatively low level heritage designation.

Findings

47. There are four relevant findings on this matter. First is to say that it is clear from the expert evidence (see [32]) that there is a contribution made by the villa to the heritage conservation area following the restorative works undertaken in accordance with D/2012/297. At one level this would only make sense given the evidence that in that development increased development rights came as a consequence of the restoration requirements. There is an oddity here in that Mr Davies may well be correct in his interpretation that the villa, not even after restoration, qualifies as a contributory building under the DCP (see [33]). When I examine the DCP’s definition (Part 3.9.7), I agree that a relatively high bar is set. It seems to be possible for a building to make, say, a moderate contribution to the HCA without necessarily qualifying as a “contributory building”. The significance of the contribution made by the villa might be debated but in my view the contribution is of substance. In turn, the stance made by Council, aimed at ensuring that the currently proposed development not erode or detract significantly from the contribution now made by the villa, in the HCA, is a reasonable one.

48. The second point is in regard to the finishing particulars themselves as outlined in the plans. The concerning aspects are with respect to the finishing details of the doorway and for me, in particular, the subsequent implications in regard to how the door, door-top awning, balustrades planting and planting along the Farrell Avenue wall, together, finish off. The height available for the doorway opening is reasonably tight (Ex C Sheet DA06 Rev f, DA07 Rev f). It was not clear to me how the doorway opening and door structure would work, including with respect to the door mechanism. There seemed a possible risk of a disjuncture in the finishing off of levels, with respect to the opened door and its mechanism, and then the relationship with balustrades and landscaping. There was less than the required degree of resolution of these matters to the extent that it was not clear that an unsatisfactory misalignment of the finished work might result, detracting from viewlines to the villa, particularly from Darlinghurst Road (as one approaches along a sight line similar to that shown in Photo 1).

49. The third point is in regard to whether proposed Condition 2 (Ex 5) would adequately address the concern expressed in the second point, above. The condition is cited relevantly at [45]. The plain wording of this condition would have Council’s Area Planning Manager “approve” the finishing particulars in regard to the door and balustrades along the Farrell Avenue wall. The position being put by Mr Conomos was that if concerns remained about the Farrell Avenue doorway area details as particularised so far (Ex C), then, as a consequence of Condition 2, Council retained an oversight approval role in the finalisation of any details.

50. On this point, Ms Reid referred me to cl 161 of the Environmental Planning and Assessment Regulation 2000 (‘EPA Regulation’), which provides as follows:

161 Certifiers may be satisfied as to certain matters

(1) This clause applies to the following matters—

(a) any matter that relates to the form or content of the plans and specifications for the following kind of work to be carried out in connection with the erection of a building or the subdivision of land—

…

(iv) landscaping work,

…,

(b) any matter that relates to the external finish of a building.

(2) Any requirement of the conditions of a development consent that a consent authority or council is to be satisfied as to a matter to which this clause applies is taken to have been complied with if a certifier is satisfied as to that matter.

51. Ms Reid’s submission was that cll 161(1)(b) and 161(2) meant that, given the finalisation of details for the door and balustrades along the Farrell Avenue wall were concerned with “the external finish of a building”, a private certifier could take the place of Council on the question of whether “satisfaction” has been achieved in regard to these details.

52. Mr Conomos argued that the provisions of cl 161 were not alive because the relevant condition gave the satisfaction (or approval) power to the “Council’s Area Planning Manager”, rather than a “consent authority or council”, as referenced at cl 161(2).

53. My conclusions on this third point are as follows. It is reasonable to take a position that relatively exacting detailing is necessary to ensure that the Farrell Avenue doorway area can be finished off without eroding or detracting significantly from the heritage conservation contribution now made by the villa, in this HCA. The qualitative nature of the questions at hand, and limited capacities within the proposed conditions of consent to otherwise direct the Farrell Avenue doorway area detailing, makes it inappropriate for a private certifier to have responsibility for approval of this detailing. Without the benefit of legal authorities which might prove otherwise, it would seem to me reasonable to conclude that when cl 161(2) establishes certain powers of a private certifier, with respect to a council, it would also do so with respect to an officer of the same council. In turn, it seems to me that there is a clear risk that a private certifier might make the judgement that there is power to approve these external finish particulars. I disagree with Mr Conomos that there would necessarily be a continued approval role for the Council, with respect to Farrell Avenue door area detailing with the conditions as proposed.

54. The fourth point is procedural, and arose with submissions from Mr Conomos with regard to an email exchange between his office and Council (Ex F). My understanding of the concern of Mr Conomos was that there had been a form of understanding between the parties that the Farrell Avenue door area detailing could be resolved by way of conditions. In turn the extent of continued examination of this issue by Council in the hearing may have brought prejudice in regard to the applicant’s bringing of further evidence to the hearing. The email from the office of Mr Conomos dated 26 February 2020 as indicated in Ex F was as follows:

“Further to contention 2 of the respondent’s amended statement of facts and contentions, could you please urgently confirm that this contention is capable of being dealt with by way of conditions, as otherwise we will need to retain an expert to joint conference.”

55. The reply from Council the following day is indicated as follows:

“I am instructed that the matters in Condition 2 can be dealt with by way of condition or in the planning joint conference. The Respondent is not briefing a landscape expert.”

56. I note that the joint reports from both the planners and heritage experts were filed on 6 March 2020.

57. There are some limitations to the understandings which may be available from the above email exchange. Briefly for the record I would understand the contention under attention is contention 1.2 rather than contention 2. I would also mention that, as far as landscaping is concerned, there appears to me to be adequate capacity for this matter to be addressed, and of itself this was not the core of my concern. What is clear is that the implications of the Farrell Avenue door area was a matter of significant attention in the joint heritage experts report and in the oral evidence. That is to say the appropriate experts were available to give evidence. It is also appears that some efforts were made to address the detailing of the Farrell Avenue doorway area through the additional material provided in Ex C, and for which leave was granted at the hearing itself (relevantly, Sheets DA06 Rev f, and DA07 Rev f – each revision referenced as dated 16 March 2020, that is, after the joint heritage report finalisation). I have already found that the material in Ex C did not provide what I have called the “relatively exacting” detailing necessary to ensure that the Farrell Avenue doorway area can be finished off without eroding or detracting significantly from the heritage conservation contribution now made by the villa. I find this procedural concern to have limited weight.

Conclusion

58. As members of the public walk south along Darlinghurst Road in the site vicinity, the villa and the Farrell Avenue wall in the foreground to it are prominent (Photo 1). There are good prospects that a well-designed opening to this wall (into a restaurant) would bring about a public benefit aligned with policy ambitions for this section of Darlinghurst Road. But before any approval, it would be first necessary to be satisfied that any wall opening not put at risk heritage conservation benefits that have been secured through the works on villa associated with a prior consent. Based on the information before the Court I cannot be satisfied that this would not occur. In turn, and mindful of the provisions of cl 5.10(4) of the LEP, the proposal cannot be supported due to the potential adverse effect on the qualities of the HCA.

59. The LEP’s design excellence provisions (cl 6.21) were not a major point of focus in the hearing and have not been in this judgement. Suffice to say here that while there are qualities of the proposal which align with the design excellence conceptions (related to the enlivening of the public domain), it cannot be said that the proposal exhibits design excellence in regard to heritage conservation considerations.

60. The Court orders that:

1. The appeal is dismissed.

2. Development application D/2018/410 is refused.

3. The exhibits are returned with the exception of Exhibits A and C.

…………………………

P Walsh

Commissioner of the Court

********

Decision last updated: 15 April 2020