Gray v Council of the City of Sydney

[2008] NSWLEC 1303

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Gray v Council of the City of Sydney [2008] NSWLEC 1303

PARTIES:
APPLICANT
Colin and Lissa Gray

RESPONDENT
Council of the City of Sydney

FILE NUMBER(S):
11270 of 2007

CATCHWORDS:
Development Application :-  Dwelling houses and subdivision, conservation area and streetscape, car parking, residential amenity.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
South Sydney Local Environmental Plan 1998
City of Sydney Heritage Development Control Plan 2006,
South Sydney Development Control Plan 1997
Urban Design (South Sydney Development Control Plan 1997)
South Sydney City Council Development Control Plan No. 11 - Transport Guidelines for Development 1996

CORAM:
Bly C

DATES OF HEARING:
10 and 11 June 2008

JUDGMENT DATE:
25 July 2008

LEGAL REPRESENTATIVES

APPLICANT
Mr G Green, solicitor
of Pikes Lawyers

RESPONDENT
Mr S Kondilios, solicitor
of Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

25 July 2008

11270 of 2007  Colin and Lissa Gray v Council of the City of Sydney

JUDGMENT

Introduction

1. This appeal relates to a development application for the conversion of two terrace dwellings at 245 and 247 Riley Street Surry Hills into a single dwelling and the construction of a new contemporary four storey dwelling fronting Little Riley Street (at the rear). The new dwelling is to have a double garage whereas the converted dwelling will have no car parking.  The two resultant buildings will be separated by their private courtyards that will be dominated by an existing 10 m high Brush Box tree that is to be retained. Re-subdivision consistent with the new site arrangements is also proposed.

1. The Victorian terrace dwellings on the site are of the Georgian style.  They each have a single nondescript garage with access off Little Riley Street.

1. This judgment concludes that the appeals should be dismissed because of the absence of off street parking for the Riley Street dwelling.

Planning controls

1. The relevantly applicable planning controls comprise the South Sydney Local Environmental Plan 1998 the City of Sydney Heritage Development Control Plan 2006, the South Sydney Development Control Plan 1997: Urban Design (South Sydney DCP 1997) South Sydney City Council Development Control Plan No. 11 - Transport Guidelines for Development 1996. Under the LEP the site is included in zone 10 – Mixed Uses and the proposed development is permissible with development consent.  The site is also included in a Heritage Conservation Area under the LEP and the Heritage DCP. 

1. The DCP sets a maximum floor space ratio of 2:1 for this site.  The Little Riley Street dwelling is to have a floor space ratio of 1.74:1 and the Riley Street dwelling is to have a floor space ratio of 1.49:1.  The Little Riley Street dwelling is the taller of the two dwellings and with a height of 11.5 m complies with the maximum height control of 12 m.

1. The DCP also requires that there be 45m2 of private open space for a dwelling although for townhouse development a minimum area of 35 m2 is to be provided as a courtyard with minimum dimensions of 4 m.  Both houses have a 35 m2 (5m x 7m) courtyard that is partially decked and partially soft landscaping and comply with the townhouse requirement.  The larger Little Riley Street dwelling has an additional upper level 5.3 m2 deck and the smaller Riley Street dwelling has a 9.1 m2 front yard. In my opinion the private open space provision that is designed in both cases to be an extension of the living areas of the dwellings is a satisfactory arrangement.

Resident's objections

1. The application was advertised and three objections plus two petitions also objecting to the proposal were received. In essence these objections raise concerns including:

   Failure to comply with Council's planning controls, particularly in relation to the proposed lot sizes.
   The proposed built form will have an excessive height and bulk in terms of its presentation to Little Riley Street.
   The proposed building will have an inappropriate character in the context of the early Victorian character of Little Riley Street.
   The adjoining dwelling at 16 Little Riley Street will suffer a loss of light as a result of its side windows being covered by the proposed building.
   The western presentation of the proposed building will be unnecessarily and annoyingly reflective in Goodchap Street.

1. When the hearing began on-site two of the objectors gave evidence elaborating on the above concerns and adding further concerns including inadequacy of off-street parking, inappropriate use of glass bricks, loss of breezes through the street and noise from the swimming pool.

Expert evidence

1. Expert town planning evidence was provided by Ms K MacDonald (respondent) and A Betros (applicant).  Expert heritage evidence was provided by Mr A Smith (respondent) and Mr R Staas (applicant).  The applicant's architect Mr P Lonergan provided information about his design when the hearing began.

Council's contentions

1. The following contentions remain in dispute:

   The proposed new dwelling in Little Riley Street is unsatisfactory in heritage and urban design terms and fails to meet the relevantly applicable provisions of the planning controls. It also has an inappropriate bulk scale and form.
   The relationship between the existing altered dwelling and the Little Riley Street dwelling across their courtyards is unsatisfactory in terms of visual and acoustic privacy and fails to meet the relevantly applicable provisions of the planning controls.
   The proposed courtyards are too small and will not receive a satisfactory level of solar access, taking into account the relevantly applicable provisions of the planning controls.
   The proposed car parking arrangement is unsatisfactory because no off-street car parking is provided for the Riley Street dwelling
   There are alternative designs that would address all of the concerns of the council.

Streetscape - Little Riley Street

1. The Heritage DCP requires that development within a heritage conservation area be compatible with the surrounding built form and pattern of development and in this regard it identifies certain buildings as contributory neutral or detracting buildings.  Most of the existing buildings to the north of the site in Little Riley Street are identified as contributory items and the buildings to the south are identified as neutral items.  Little Riley Street is not identified as a heritage streetscape.

1. The Heritage DCP notes that contributory buildings make a significant contribution to the character of heritage conservation areas whereas neutral buildings neither contribute nor detract from this character.  Hence, the positive contribution of contributory buildings should be maintained; the contribution of neutral buildings should be retained and improved; and the contribution of detracting buildings should be improved.  Whilst these provisions seem to be mainly aimed at maintaining retaining and/or improving the buildings so identified, to protect the conservation area, it is reasonable to expect that any new development or redevelopment in the relevant vicinity of such buildings should respect and respond to this approach.

1. The DCP requires the maintenance of certain built forms patterns and details whilst creating an innovative and sustainable built environment.  It is neither essential nor desirable to replicate the appearance of adjacent buildings.  In this regard it seeks building facades that reinforce the character and continuity of the streetscape by recognizing contextual cues.  Also the building design needs to contribute to harmonious and robust streetscapes.  More particularly, rear lane and infill development should be compatible with neighbouring buildings.

1. The heritage experts agreed that the streetscape in Little Riley Street is eclectic with a mixture of uses, architectural styles and heights.  Also, the predominant character of development on the east side of this street is industrial in scale and character. They also agreed that a contemporary architectural design is acceptable in this context. However they and the town planning experts disagreed in relation to a number of other matters.

1. Clause 22 of the LEP requires that consent must not be granted for the carrying out of development in a conservation area unless the proposal is consistent with certain aims and objectives.  Mr Smith considers that the proposed new dwelling in Little Riley Street fails to meet objectives (e) and (f) that require that new development should not detract from conservation areas and their setting. 

1. He also considers that it fails to address the provisions of the DCP in relation to rear lane compatibility and infill development. In this regard I do not agree that Little Riley Street should be treated as a rear lane despite its narrow width.  This is because it has not been specifically identified as such nor does it have the characteristics of a lane, taking into account that buildings in the street address it as their principal frontage.

1. Mr Smith’s particular concerns are as follows:

   The building's primary street wall (as amended) is acceptable and will provide a reasonable transition between the lower flanking building to the north and the higher flanking building to the south.  However its overall height (ie the fourth level where it steps back behind the street wall) is excessive because it matches the four storey neutral building to the south rather than the lower contributory buildings further to the north.  In these circumstances it would dominate in its axial presentation to Goodchap Street.   
   The building does not respond sympathetically to the existing subdivision pattern nor does it exhibit compatibility with neighbouring bulk, scale, massing and detailing.  At four storeys the building would adversely impact on the existing two-storey close by terraces.  It will thus dominate and detract from original buildings in the street.
   The building does not demonstrate an appropriate scale in a manner that it terminates the eastern end of Goodchap Street.  When viewed from the west along the street axis the two-storey terraces in Goodchap Street are dominant and because the fourth story of the proposed building is clearly seen the jump in scale is excessive and lacks the necessary sympathy required by the conservation area.

1. Ms MacDonald held similar opinions to those of Mr Smith.  She emphasised that the building should have a stronger relationship to the contributory buildings to the north rather than the adjoining detracting buildings and those to the south.  It should be lowered by one storey to enable a greater view of the Brush Box tree (in the courtyard) from Goodchap Street.

1. In response Mr Staas contends that:

   The building is sympathetic and does not detract from the heritage significance of the conservation area.  To achieve this it is not necessary to copy or replicate what exists in order to produce an appropriate infill development, especially taking into account this mixed urban context.
   The building is transitional in scale with respect to the buildings in the immediate context, acting as a height transition between adjacent buildings in terms of heights and setbacks. It provides its own contemporary yet appropriate character in this mixed setting
   The building has a bulk, scale and massing that is entirely and appropriately compatible with adjoining developments.  It does not need to reflect the scale or Victorian character of the contributory buildings that are separated from the site and are seldom seen in the same context. It does not impact on any significant characteristics of existing development in the street and emulates some of the industrial character that is a significant component of the streetscape.
   The height of the building is appropriate and the visual prominence of the design at the end of the Goodchap Street vista is an appropriate urban design resolution.

1. Mr Betros essentially agreed with Mr Staas that the building is appropriately responsive to its neighbours and that less importance should be attributed to the contributory terraces that are inconsistent with the form of the closer streetscape elements to the south.

1. Whilst there are numerous aspects to the respondent's experts concerns, the essence of these concerns involve the appearance of the dwelling in the Little Riley Street streetscape and that the fourth level of the building should not be there.  Helpfully here Ms MacDonald and Mr Betros produced a diagram (Exhibit L) that shows that between a distance of 13 m and 45 m to the west of the site down Goodchap Street, the stepped back fourth level of the building will be variously and partially seen up to an apparent height of 800 mm above the parapet of the third level. In other words it will not appear as a full storey and will be little seen if at all from Little Riley Street.

1. The respondent invited me to give significant weight to the relationship between the Little Riley Street dwelling and the contributory buildings to the north.  As referred to above, there are no specific provisions in the DCP that require new development to actually match contributory buildings but they should nevertheless be taken into consideration.  Taking this into account I nevertheless agree with Mr Staas and Mr Betros that it is appropriate for an infill development on this site to respond to its more immediate neighbours.

1. Even though the proposed building does not have the same scale or character as the two-storey contributory buildings, I do not accept that it would have an adverse impact on them especially as they are seldom seen in the same context.  Conversely I agree with Mr Staas that its scale and massing in terms of height and setbacks are appropriately transitional in relation to its more important immediate neighbours, including the four- storey neutral building to the south. In this regard I accept that the very strong character of these buildings dominate the relevant visual context at the corner of Little Riley and Goodchap Streets where the site is situated.

1. This relationship will be mostly apparent when viewed from Goodchap Street.  This is the context where Mr Smith contends that the proposed building has an excessive scale and fails to terminate the eastern end of the street in a manner that is sensitive to the existing two-storey terraces.  Again I agree that the relationship between the proposed building and its neighbours to the north and south is important and do not accept that the removal of the fourth level would make any appreciable difference in terms of the building's relationship with the terraces in Goodchap Street.  I thus accept that it will, as Mr Staas says, provide an appropriate urban design resolution to this vista.

1. Plainly this development will alter the existing subdivision pattern of the site and its relationship to its neighbours.  However taking into account my conclusion that the development in its presentation to Little Riley Street (and there being no fundamental criticism of the Riley Street building) is satisfactory I do not accept that the change to the subdivision pattern is unsympathetic or incompatible.

1. As for Ms Macdonald's suggestion that the building be lowered by one storey to enable a greater view of the Brush Box tree, an examination of the cross-section (Exhibit L) reveals, taking into account the viewing angles from Goodchap Street, that it is likely, even with the removal of one storey, that very little of the tree would be seen. I have reached this conclusion taking into account that the Brush Box tree has a height of 10 m above the courtyard floor level at RL 43.00 by comparison with the proposed top of roof at RL 52.55.

1. In reaching my conclusion that, taking into account the provisions of the DCP’s, the Little Riley Street dwelling would be appropriate in the streetscape I have given contributory weight to the fact that it complies with the floor space ratio and height controls.  In the circumstances I am satisfied that the proposed building would not detract from the conservation area, thus satisfying the requirements of cl 22 of the LEP.

Internal amenity - building scale

1. The two-storey Riley Street dwelling and its courtyard will be juxtaposed with the three-storey presentation of the Little Riley Street dwelling with a separation distance of about 9.5m – 10.5m (by scale).  According to Ms MacDonald this separation distance is insufficient resulting in the three-storey dwelling having an overbearing impact on the two-storey dwelling. Instead, the new dwelling should be subordinate or equivalent in scale.

1. Mr Betros disagreed arguing that, taking into account compliance with the height and floor space ratio controls and by only being one storey higher than the existing building this is not indicative of an overwhelming structure.  It is also important to note the limited aspect from the Riley Street dwelling to the new dwelling and the retention of the Brush Box tree.

1. Disregarding the benefits afforded by the Brush Box tree, there can be no doubt that when viewed from the Riley Street dwelling's living areas and courtyard that the Little Riley Street dwelling, will be conspicuous.  However, taking into account that its scale is not out of character with neighbouring buildings and the compliance with the height control in the DCP, I do not agree that it will be so overbearing as to be unacceptable. 

Internal amenity - privacy

1. According to Mr Betros the distance of separation (referred to above), together with proposed screening, window design and the retained Burch Box tree will achieve an appropriate degree of privacy that would be greater than what typically exists in the locality where overlooking is commonplace.  It is also consistent with the privacy measures contained within the DCP.

1. Ms MacDonald said that there should be a minimum of 12 m separation between the two buildings.  This would ensure an appropriate level of visual and acoustic privacy especially as the two main living areas are oriented to face each other.

1. I agree with Mr Betros that, taking into account the proposed screening and window design for the upper levels of both dwellings this such as to result in a satisfactory level of visual and acoustic privacy, taking into account the nature and density of development in this locality.  Although a 12 m separation would have produced a better outcome I have not been persuaded that an increased distance of separation is essential.  Ms MacDonald is correct when she emphasises the importance of the juxtaposition of the two main living areas and the need to ensure an appropriate level of privacy for these areas. Taking this into account I again agree with Mr Betros that the arrangement is satisfactory, particularly as these living areas are at ground level and have the additional benefit of the 1.8 m dividing fence.

Internal amenity - solar access

1. Mr Betros said that the courtyards comprising the private open space for the two dwellings would, at the winter solstice, receive in excess of two hours of sunlight to at least 50% of the ground surface as well as 1 m above the ground.  Also the proportions of the 38 m2 open space areas are better than the existing long narrow arrangements that are adversely affected by fence shadows.  The arrangement is superior to the courtyards of many terraces in the area.

1. Ms MacDonald said that solar access at 1 m above the ground should not be included and that the courtyards would not comply with the solar access requirements of the DCP.

1. They agreed that the courtyards do not meet the three hours solar access test in AMCORD nor do they meet the two hours test in the DCP as applied to 50% of the ground surface. They also agreed that the Little Riley Street dwelling's courtyard would have sunlight to up to 30% of the ground surface and the Riley Street house's courtyard would have sunlight up to 25% of the ground surface.

1. Plainly the courtyards do not meet the solar access requirements of the DCP or AMCORD.  Despite this I am satisfied with the availability of solar access to the dwellings and their courtyards.  In reaching this conclusion I have taken into account that the dwellings themselves would receive good solar access, the nature and density of development in this locality and the constraints of the site especially the height of the adjoining buildings to the north.  I have also taken into account that the courtyards and the interconnected living areas (that also receive some solar penetration in mornings and afternoons respectively) would have good amenity generally.

1. Finally in relation to solar access the town planners acknowledged that the north facing windows (that are on the boundary) of the adjoining dwelling at 16 Little Riley Street would be affected.  However Council's approval of those windows in 1998 recognized that despite future development of the subject site, the building would still achieve compliance with the BCA in terms of access to light and ventilation. I agree that this is not a determinative consideration.

Car parking

1. I agree with Mr Betros that Little Riley Street is not a rear lane and as a consequence the car parking requirements of Part G of the DCP are not relevant.  (If applicable this would have required one car parking space for each dwelling).  The Transport DCP nevertheless requires the provision of one car parking space for each single dwelling and whilst the Little Riley Street dwelling that provides two off-street cars spaces (effectively replacing the two existing off-street car parking spaces) complies with this requirement the Riley Street dwelling that has no off-street car parking does not.

1. The Transport DCP notes that the car parking rates are generalised and there is scope for flexibility in particular circumstances and taking into account local conditions. However, departures from the set rates need to be fully explained and justified and a number of possible criteria for any such departure are identified. In this regard the applicant relies on the availability and level of service of public transport and the ease of access to services and facilities. According to Mr Betros the site is in close proximity to public transport and is within reasonable walking distance of the Sydney CBD.  Also, the non-provision of off-street car parking for the Riley Street dwelling is consistent with the locality generally.

1. Ms MacDonald disagreed, applying the DCP test that requires the applicant to demonstrate that the variation will not result in increased demand for on-street parking.  She stressed the not unreasonable expectation that new developments should service their car parking demand on-site.  (In this context I accept that this is a new development).  In this regard the Riley Street dwelling is to have three bedrooms and a study and it can be reasonably expected that the occupiers will have a car.  Without the required off-street car parking space the present high demand for on-street car parking will inevitably be increased.  Furthermore the proposal creates an inequitable distribution of car parking across the site - two car parking spaces for one dwelling and none for the other.

1. The car-parking question essentially involves whether this development should provide one of the dwellings with two car parking spaces and the other with none or whether each of the dwellings should have one car parking space each.  It is a difficult question and as submitted by the respondent is a serious issue.  Its resolution requires, taking into account the requirements of the Transport DCP, that I decide whether the availability of public transport facilities and ease of access to services should prevail over the probable impact on on-street parking that I accept is already subject to high demand.

1. I recognize that there are many dwellings in this locality that do not have off-street car parking and this is consistent with the residents' evidence that the existing level of demand for parking is considerable.  However, I agree with Ms MacDonald that the Riley Street dwelling is of such a size as that it is inevitable that the occupants will own at least one car despite the availability of public transport and access to services. As a consequence this will add to the demand for on-street parking in this locality and traffic congestion generally. In the circumstances I have decided that the relevant test in the Transport DCP for the reduction of the car-parking requirement has not been met.  In reaching this conclusion one cannot ignore the fact that the two existing dwellings on the site each has a single off-street parking space.

Conclusions

1. As a result of its failure to comply with the requirements of the Transport DCP in relation to car parking I have decided, that the appeal should be dismissed. As indicated above the resolution of the car-parking question was not easy and was made more difficult by the fact that I find that development to be otherwise satisfactory. But for the car-parking problem, on its merits, this innovative proposal warrants approval. 

1. Whilst the solar access to the courtyards is not optimal I am satisfied that the living amenity of these two dwellings in this densely developed inner-city location would be of a relatively high standard. 

1. Also, for the reasons discussed above the scale, form and presentation of the new dwelling would comprise an appropriate streetscape response taking into account the planning controls and the nature of surrounding development. In this regard taking account the building’s compliance with the floor space ratio and height controls that are, in their own way, indicative of the need to provide a building of substance as is proposed and which is an appropriate response for this site at the intersection of Little Riley and Goodchap Streets.

1. In the circumstances it is unnecessary to consider the various alternative designs put forward by the respondent even if some aspects of these alternative designs might better address the respondent's concerns than what is presently proposed.

1. Finally, respondent says that this is a selfish proposal that mainly responds to the desires of the applicant.  Having heard the evidence of the applicant herself it is clear that this is a design that responds to her particular needs.  In my opinion this should not attract any criticism nor should it attract any weight one way or the other.  Instead the application must simply be dealt with on its own merits.

1. For the above reasons the appeal is dismissed and the development application refused.

   ___________________

   T A Bly
   Commissioner of the Court

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