Giles v Sydney City Council
[2006] NSWLEC 230
•04/04/2006
Land and Environment Court
of New South Wales
CITATION: Giles v Sydney City Council [2006] NSWLEC 230 PARTIES: APPLICANT
RESPONDENT
Ian Giles
Sydney City CouncilFILE NUMBER(S): 11556 of 2005 CORAM: Tuor C KEY ISSUES: Development Application :- Alterations and additions to a terrace house,
impact on heritage significance of conservation area
solar accessLEGISLATION CITED: Environmental Planning and Assessment Act 1979
South Sydney Local Environmental Plan 1998
South Sydney DCP 1997
South Sydney Heritage Conservation DCP 1998DATES OF HEARING: 03/04/06 and 04/04/06 EX TEMPORE JUDGMENT DATE: 04/04/2006 LEGAL REPRESENTATIVES: APPLICANT
Mr G. Green, solicitor
of Pike Pike and FenwickRESPONDENT
Mr S. Kondilios, solicitor
of Maddocks Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESTuor C
4 April 2006
JUDGMENT11556 of 2005 Ian Giles v Sydney City Council
1 This is an appeal against the refusal by the City of Sydney Council (the council) of a development application under the Environmental Planning and Assessment Act 1979 (the Act) for alterations and additions to a terrace house at No. 71 Boronia Street, Redfern (the site).
The site and its context
2 The site is located on the southern side of Boronia Street at its intersection with Marriott Street Redfern. It is approximately rectangular in shape with a front and rear dimension of 3.81 m and side dimensions of 24.735 m with the long eastern boundary fronting Marriott Street. The site has an area of 95.77 sq m and the land is flat with a part single/part two-storey terrace located towards the Boronia Street boundary.
3 The building is one of a terrace of ten houses along Boronia Street. There is a single storey shed and outhouse located towards the rear southern end of the site. This adjoins a narrow nightsoil lane, which separates the site from the single storey terraces that front Marriott Street. On the opposite side of Marriott Street are two-storey terraces.
4 Across Boronia Street to the north are single storey terraces with a small local open space positioned between the single terraces and the two-storey terraces to the north-east of the site.
Planning framework
5 The site is zoned residential 2(b) under South Sydney Local Environmental Plan 1998 (LEP 1998). The proposal is permissible with consent. The site is located within Heritage Conservation Area 3, Baptist Street Conservation Area under LEP 1998. The terrace group and surrounding development are identified as being contributory elements within the Baptist Street Conservation Area.
6 Clause 22 of LEP 1998 requires development to be consistent with the objectives for heritage conservation which relevantly include:
(a) to conserve the environmental heritage of the land to which the plan applies, and
(b) to ensure that any development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of heritage items, of heritage conservations areas and their setting, and of streetscapes within heritage streetscape areas and their setting, and
(f) to ensure that any development is undertaken in a manner that is sympathetic to, and does not detract from the heritage significance of distinctive streetscapes, landscapes and architectural styles which define the character of heritage conservation areas or streetscapes within heritage streetscape areas.
7 The statement of the significance for the Baptist Street Conservation Area in the heritage inventory sheet states:
The Baptist Street Conservation Area has historic significance as an 1890 residential subdivision of an early industrial precinct, (Baptist’s Nursery circa 1830). The area has aesthetic significance for its highly consistent rows of terrace houses and shops from the late Victorian and early Federation period enhanced by mature avenue plantings and its fine religious and institutional buildings. The area is predominantly intact.
8 The inventory sheet includes conservation strategies for (contributory) development which include:
· retain Victorian subdivision pattern
· retain 1-2 storey Victorian/Federation terraces
· retain scale
· retain form
· retain finishes and materials
· re-instate verandas, front fences and lost detail
· additions to rear not to exceed ridge height and retain original roof form.
9 South Sydney DCP 1997 (DCP 1997) and South Sydney Heritage Conservation DCP 1998 (the Heritage DCP) are also relevant. DCP 1997 includes controls relating to floor space ratio (FSR), setback and solar access, which were raised as issues in the case. Section 4 of the Heritage DCP includes guidelines and controls for alterations and additions to heritage buildings. It states that
throughout this section the term heritage buildings is used as a substitute for the term heritage items and buildings within conservation areas.
10 The statement of issues included eight issues. These can be summarised into the key issues of:
1. Whether the first floor addition proposed to the rear of the existing terrace would have a detrimental impact on the significance of the conversation area.
2. Whether the solar access to the outdoor areas of the development is unacceptable and warrants deletion of the rear studio.
- The evidence
11 The Court heard evidence on site from four residents who raised concerns about the impact of the first floor addition and rear studio on solar access and outlook of their properties and the impact of the proposal when viewed from Marriott Street. Another resident supported the proposal and considered that it was an appropriate addition to a building in a conversation area.
12 Ms C Kemp, for the Council, and Mr R Staas, for the applicant, provided expert heritage evidence. The experts agreed on the significance of the conversation area and the contribution of the existing building. They considered the rear studio had an acceptable impact on the conservation area and that the works proposed to the Boronia Street and Marriott Street façades of the existing building were appropriate, subject to changes to the proposed windows on Marriott Street.
13 The experts agreed that
the primary heritage matter for the Court to determine is the acceptability of the rear first floor addition and its impact on the character and significance of the conservation area and particularly the visual impact of the change when viewed from Marriott Street and its impact on the rear of the terrace row of which the subject property is part.
14 The difference in opinion between the experts is summarised in the joint statement; the key differences being that:
Mr Staas considers that the scale, form and location of the proposed addition to the corner terrace is sympathetic to the general character of the conservation area and does not seem out of scale with adjoining development.
Ms Kemp considers that the first floor rear addition does not comply with various controls contained in the South Sydney Heritage DCP 1998 and that it would adversely impact on the consistent rear elevation of the terrace row.
15 In relation to the term “neighbouring development” in the Heritage DCP, Ms Kemp considers this refers to “development in proximity to and within the visual catchment of the property”. Mr Staas considers that:
this has the wider context in mind in terms of compatibility and sympathetic character and should not, in the case of non-listed buildings, be restricted to the immediate neighbour. In his opinion, the development is broadly sympathetic in the area and, in particular, with the established character of corner buildings in the immediate context which have more substantial returns than other terraces.
16 In relation to the term “visibility from the street” in the Heritage DCP and its application to secondary streetscapes and façades that are not of primary significance in establishing streetscape character, Ms Kemp considers that the “streetscape appearance” is as defined in the Heritage DCP General Principles 4.1.1 which states that:
In buildings that are not individually listed heritage items, it is the parts of the buildings that are visible from the street that are of most importance to the conservation area, i.e. the building’s streetscape appearance.
17 Mr Staas considers that:
the primary streetscape character as described in the statement of significance is the unity of the Boronia Street presentation of the terrace and that Marriott Street has a different mixed character that can absorb the various additions that are seen in a number of buildings from that street. This would include the proposed first floor addition and the separate studio structure.
Findings
18 Part of the significance of the Baptist Street Conservation Area is its “highly consistent rows of terrace houses”. This consistency is achieved by consistency of form and detail, which is often only visible in the public domain from the primary street frontage.
19 The rear of terraces is often not visible, or less apparent from the public domain, this provides the greatest opportunity to extend terraces to meet contemporary requirements. The Heritage DCP states that the parts of buildings, which are visible from the street, are the most important to the conservation area.
20 The proposal is located on a corner and, it and the adjoining buildings in the terrace are clearly visible from Boronia Street in the front and Marriott Street in the rear. From the rear, the upper level and roof of all the terraces are intact and the form is the original form. It remains the same as when the terraces were constructed, probably as a speculative development by one developer.
21 The ground level of the terraces has been added to over the years and there is no consistency in how this has been done. The impact of the ground level additions is mitigated only by their low scale and restricted visibility from the street. This ad hoc approach to rear additions was apparent on the view of other blocks in the conservation area and, while individually some additions are appropriate, the combination of different styles of additions, when visible from the public domain, does not contribute to the significance of the conservation area, which relies on consistency as part of its significance.
22 The site, and the adjoining terraces, is visible in the public domain and the upper levels are is intact. The Heritage DCP recognises the importance of intact rear terraces and s 4.1.3 includes the following controls of particular relevance to the proposal:
· major additions to the rear of heritage buildings will only be considered by council if the extension can be adequately accommodated on site, it is not visible from the street and does not adversely affect an intact row of terraces.
· upper floor additions may be appropriate to buildings which do not form part of an intact group of terraces and in a streetscape where the building height is variable….
23 Mr Staas recognised that the building was part of an intact group of terraces but considered that, as the building was a corner building, the addition to the rear was consistent with the treatment of other corner buildings in the conservation area, which have more substantial returns than other terraces. He stated that the addition was appropriate to the building itself and would form an appropriate model for changes to other buildings in the terrace to accommodate the changing accommodation needs.
24 I accept that the proposed addition is well designed and an appropriate addition to this individual building, which would sensibly provide for the accommodation needs of the applicant. I also accept that it could be an appropriate model for development of other houses in the terrace row. However, the proposal will impact on the row of terraces. It will alter the consistency of the row of terraces that currently exists. This consistency is part of the significance of the terraces and is becoming increasingly important, as the rear of terraces have been altered over time. This could be an argument to support the proposal given that additions to rear of terraces are part of the character of the area and there are examples where two-storey additions were part of the original design of terraces.
25 However, the key to whether these additions contribute or detract from the significance of a row of terraces seems to lie in the consistency of approach and the degree of visibility. Two-storey additions that were part of the original terrace maintain consistency, generally being constructed as part of the original speculative development. Single storey additions, while different in appearance, have less impact, as they are generally less visible. Single and two-storey additions in terraces, which already do not exhibit consistency or if the addition were not visible also would have less impact.
26 The proposal would alter an intact row of terraces and be highly visible. Being a corner site, it would have less impact than if it were within the row of terraces. However, I do not accept Mr Staas’ argument that the proposal is justified on the basis that it is a corner site and is therefore consistent with the character of other corner sites. I accept that corner sites are often delineated by larger buildings which are treated differently to other buildings in the row through techniques such as different heights, roof form or street return and usually to define a different use, such as of a corner shop. However, I do not consider that the addition would be consistent with that character. The row reads as a consistent row and can be seen from Marriott Street. The addition would read as an extension to the consistent form of development in the row, rather than as a terminating element.
27 I therefore do not consider that the two storey addition meets the requirements of the Heritage DCP or LEP 1998. While I recognise the need to provide additional accommodation on the site to meet the client’s needs, I consider that this can be achieved by the studio at the rear and an addition at ground level which extends to the southern wall of the existing dwelling. I accept that this change can be a deferred commencement condition as proposed by the applicant.
28 No expert evidence was presented to the Court in relation to solar access. Both the applicant and the council provided shadow diagrams, which were consistent. Based on these shadow diagrams I find that the solar access to adjoining properties to be acceptable.
29 In relation to the solar access to be enjoyed by the occupants of the proposal, the performance criteria and controls in s 5.1 of DCP 1997 do not refer to solar access to developments themselves but only to the development’s impact on the solar access of adjoining properties and the public domain. Nonetheless, it is agreed by the parties that it is a relevant consideration under s 79C of the Act.
30 Mr Kondilios, for the council, submits that the only area of outdoor space that would receive sun in mid-winter is the rear of the property where the studio is to be located, which receives sun between about 10.30 am and 1.30 pm during mid-winter. The whole courtyard will be in shade throughout the day during mid-winter.
31 Mr Green, for the applicant, submission is that the solar access is acceptable as the internal areas of the house and studio would receive excellent solar access and the courtyard would receive sun at other times of the year. In particular, placing the studio at the rear of the site enabled it to receive north-facing sun. The deletion of the first floor addition would also increase the amount of sun to this room.
32 I accept that there is logic to placing any extension on that part of the site that is currently in shade to preserve an area of the site that receives sun. However this needs to be balanced against the opportunity to achieve a north-facing internal area with direct access to the courtyard and that the courtyard will receive sun to part of its area for a large proportion of the year.
33 On balance, I do not consider solar access is sufficient reason to require the deletion of the studio, particularly as it does not impact on the solar access to the adjoining property, which also has a structure at the rear as do a number of other properties in the row. I also consider that the principle of providing solar access to 50% of outdoor space for two hours in mid-winter may be difficult to achieve in a high density area such as this with a site of only 97 sq m, heritage constraints and when alterations and additions are proposed rather than re-development of the site. I also accept the opinion of the heritage experts that the studio has an acceptable heritage impact, as it is consistent with the scale of adjoining single storey development to the south.
34 For the above reasons, the orders of the Court are:
1. The appeal is upheld.
2. The development application for alterations and additions at 71 Boronia Street, Redfern, is approved subject to conditions in Attachment ‘A’, including the deferred commencement conditions requiring deletion of the first floor addition and allowing extension of the ground floor to the southern wall of the existing dwelling.
3. The exhibits, except exhibits A, D and 5, may be returned.
___________________
Annelise Tuor
Commissioner of the Court
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