Hollman Enterpise Pty Ltd v Leichhardt Municipal Council

[2015] NSWLEC 1007

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hollman Enterpise Pty Ltd v Leichhardt Municipal Council [2015] NSWLEC 1007
Hearing dates:	12-13 January 2015
Decision date:	20 January 2015
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal dismissed
Catchwords:	Development Application: conversion of warehouse to residential units, bulk, scale, streetscape
Legislation Cited:	Leichhardt Local Environmental Plan 2013
Cases Cited:	Wehbe v Pittwater Council [2007] NSWLEC 827; Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Texts Cited:	Leichhardt Development Control Plan 2013
Category:	Principal judgment
Parties:	Hollman Enterprise Pty Ltd (Applicant) Leichhardt Municipal Council (Respondent)
Representation:	Counsel: Mr C Shaw (Applicant) Ms R McCulloch (Respondent) Solicitors: Swaab Attorneys (Applicant) Pikes & Verekers Lawyers (Respondent)
File Number(s):	10476 of 2014

Judgment

1. Hollman Enterprise lodged Development Application D/2014/156 with Leichhardt Council on 7 April 2014 seeking consent for partial demolition of an existing warehouse and construction works to create a residential development consisting of 3 townhouses. Strata subdivision of the development was originally proposed however was withdrawn and no longer forms part of the application.

2. The application has not been determined by the council and the applicant is appealing its deemed refusal.

The site and locality

3. The site is known as No 2-8 Curtis Road, Balmain and is located on the south western side of the road between Darling and McDonald Streets. McDonald Lane provides opportunity for vehicular and pedestrian access to the site and a number of commercial properties to the west and south of the site that front Darling Street.

4. The site has an angled frontage to Curtis Road of approximately 22.5m and site area of 382.4sqm. A two storey brick industrial building is currently located on the site. Three driveway crossings service roller shutter doors within the front façade of the building.

5. An approximately two metre crossfall from the south western boundary to the north eastern corner applies over the site.

6. St Andrews Congregational Church adjoins the site to its immediate south and stands on a large triangular shaped lot. The church and its buildings are listed heritage items.

7. A two storey dwelling fronting Curtis Road (No 10) adjoins the site to its north and four terrace houses abut the site’s western boundary. Those terraces have frontage to McDonald Street. Opposite the site are a number of single and two storey attached and detached dwelling houses.

Background and the proposal

8. The application proposes the demolition of the existing building with the exception of part of the two side walls and nib returns along the façade, part of the rear wall below ground level, the majority of the ground floor slab and three columns on the ground floor level.

9. A new front wall on the same alignment to Curtis Road would be constructed with the parapet height maintained and an additional storey setback from that façade. Three balconies on the first floor level would extend to the front property boundary. The height of the parapet would be increased in parts along the north western elevation with further development above that level using sloping wall planes. The existing wall height/parapet on the south west and south east (adjacent to the Church) elevations would be maintained with further development above those levels also using sloping wall planes.

10. The new building would provide for three town houses, two containing three bedrooms and one, a four bedroom dwelling. Parking for five cars would be provided in garages on the ground floor. The development would provide the following accommodation:

• Ground floor: driveways, garaging, storage and plant, unit entry for each unit.

• First floor: front balcony, lounge, dining, kitchen, WC, stairway. A separate sitting room is also provided to units 2 and 3 and these units have pedestrian access to McDonald Lane.

• Second floor: Unit 1- 2 bedrooms (one with ensuite and walk-in robe), bathroom/laundry and stairway;

• Unit 2 – three bedrooms (one with walk-in robe, two with ensuites), bathroom;

• Unit 3 – three bedrooms (two with ensuites), bathroom and laundry.

• Third floor: Unit 1 – Bedroom, walk-in robe, ensuite and front and rear balconies;

Unit 2 – Bedroom, bathroom, laundry, front and rear facing balconies and a roof garden at the rear.

Unit 3 – Sitting room, bathroom, front and rear facing balconies and a roof garden at the rear.

The planning controls

11. The site is zoned R1 General Residential under the provisions of Leichhardt Local Environmental Plan 2013 (LEP). The development is permissible with consent in that zone. Clause 1.2 contains the aims of the LEP and clause 2.3 relates to the zone objectives and land use table. Clause 2.3(2) requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the R1 zone are:

To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To improve opportunities to work from home.

• To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas.

• To provide landscaped areas for the use and enjoyment of existing and future residents.

• To ensure that subdivision creates lots of regular shapes that are complementary to, and compatible with, the character, style, orientation and pattern of the surrounding area.

• To protect and enhance the amenity of existing and future residents and the neighbourhood.

12. Part 4 of the LEP contains Principal Development Standards and Clauses 4.3A Landscaped Areas for Residential Development in Zone R1 and 4.4 Floor Space Ratio (FSR) are relevant to the application and are in the following form:

4.3A Landscaped areas for residential accommodation in Zone R1

(1) The objectives of this clause are as follows:

(a) to provide landscaped areas that are suitable for substantial tree planting and for the use and enjoyment of residents,

(b) to maintain and encourage a landscaped corridor between adjoining properties,

(c) to ensure that development promotes the desired future character of the neighbourhood,

(d) to encourage ecologically sustainable development by maximising the retention and absorption of surface drainage water on site and by minimising obstruction to the underground flow of water,

(e) to control site density,

(f) to limit building footprints to ensure that adequate provision is made for landscaped areas and private open space.

(2) This clause applies to development for the purpose of residential accommodation on land in Zone R1 General Residential.

(3) Development consent must not be granted to development to which this clause applies unless:

(a) the development includes landscaped area that is at least 1 metre wide and comprises at least 10% of the site area, and

(b) the site coverage does not exceed 60% of the site area.

4.4 Floor space ratio

(1) The objectives of this clause are as follows:

(a) to ensure that residential accommodation:

(i) is compatible with the desired future character of the area in relation to building bulk, form and scale, and

(ii) provides a suitable balance between landscaped areas and the built form, and

(iii) minimises the impact of the bulk and scale of buildings,

(b) to ensure that non-residential development is compatible with the desired future character of the area in relation to building bulk, form and scale.

(2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.

(2A) Despite subclause (2), the floor space ratio for development for a purpose other than residential accommodation on land in Zone R1 General Residential is not to exceed 1:1.

13. The maximum FSR for the site is 0.7:1. The development exceeds the development standards for Landscaped Areas and FSR and the applicant relies on the provisions of Clause 4.6 of the LEP that provide for Exceptions to those standards. A written objection has been prepared and forms Exhibit E.

14. Clause 4.5 sets out the means of calculating FSR and, of relevance to the contentions in the case, subclause (2) which provides the following definition of floor space ratio:

The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area.

15. Gross floor area and site area are defined in the Dictionary of the LEP as follows:

gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes:

(a) the area of a mezzanine, and

(b) habitable rooms in a basement or an attic, and

(c) any shop, auditorium, cinema, and the like, in a basement or attic,

but excludes:

(d) any area for common vertical circulation, such as lifts and stairs, and

(e) any basement:

(i) storage, and

(ii) vehicular access, loading areas, garbage and services, and

(f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and

(g) car parking to meet any requirements of the consent authority (including access to that car parking), and

(h) any space used for the loading or unloading of goods (including access to it), and

(i) terraces and balconies with outer walls less than 1.4 metres high, and

(j) voids above a floor at the level of a storey or storey above.

site area means the area of any land on which development is or is to be carried out. The land may include the whole or part of one lot, or more than one lot if they are contiguous to each other, but does not include the area of any land on which development is not permitted to be carried out under this Plan.

Note. The effect of this definition is varied by clause 4.5 for the purpose of the determination of permitted floor space area for proposed development.

16. The site is located within the Balmain Heritage Conservation Area and within the vicinity of heritage items including:

• 217-223 Darling Street, Balmain (St Andrews Congregational Church) adjoining to the east;

• Gladstone Park;

• 236 Darling Street, Balmain;

• 238 Darling Street, Balmain;

• 274 Darling Street, Balmain;

• 33 and 35 Curtis Road, Balmain.

17. The site is therefore subject to the provisions of Clause 5.10 Heritage Conservation and in particular subclauses (1) Objectives, (2) Requirement for consent, (4) Effect of proposed development of heritage significance. Subclause (4) is in the following form:

Effect of proposed development on heritage significance

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. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

18. Clause 6.11 provides for the adaptive reuse of buildings in the R1 zone and is in the following form:

(1) The objectives of this clause are as follows:

(a) to provide for the adaptive reuse of existing buildings for residential accommodation,

(b) to retain buildings that contribute to the streetscape and character of Leichhardt,

(c) to provide satisfactory amenity for future residents of the area,

(d) to ensure that development does not adversely affect the quality or amenity of existing buildings in the area.

(2) This clause applies to land in Zone R1 General Residential.

(3) Development consent must not be granted to the change of use to residential accommodation of a building on land to which this clause applies that was constructed before the commencement of this clause unless the consent authority is satisfied that:

(a) the development will not adversely affect the streetscape, character or amenity of the surrounding area, and

(b) the development will retain the form, fabric and features of any architectural or historic feature of the existing building, and

(c) any increase in the floor space ratio will be generally contained within the envelope of the existing building.

19. A planning proposal to amend the landscaped area provisions of the LEP has been exhibited by the council and it has resolved to forward the plan to the Minister to be made. The planning proposal seeks to increase and amend the required landscaped area and, if it were to apply to the site would increase the area required from 10 to 40% of the site.

20. Leichhardt Development Control Plan 2013 (DCP) applies to the site and in particular the provisions of Part C – Place with Clauses C1.10 General Provisions, C1.2 Demolition, C1.3 Alterations and Additions, C1.4 Heritage Conservation Areas and Heritage Items, C.11 Parking, C1.12 Landscaping in Section 1 and C3.13 Conversion of Existing Non-Residential Buildings in Section 3 relevant to the contentions in the case.

21. The site is located within the Upper Slopes Sub Area of the Mort Bay Distinctive Neighbourhood and the provisions of Clause 2.2.2.5 apply. The Desired Future Character (DFC) of the area is to be consistent with the Controls for the Neighbourhood. The character is described as being:

The upper slopes of the neighbourhood around Darling Street south of Curtis Road and along Ballast Point Road tend to be reflective of the Victorian era development along Darling Street. The built form along these streets varies in scale from one and two storeys with generally larger dimensions that on the lower slopes adjacent to Mort Bay Park. The buildings are uniformly Victorian in style with traditional materials (render and iron), setbacks of 2m and iron picket fencing.

22. Of particular relevance are controls

C1 Maintain the single storey scale and form over most of the slope from Darling Street to the bay, applying a 3.6m envelope, except on dominant corners, where 6m may be appropriate, particularly with parapet forms. Pitched roofs are appropriate, generally using custom orb profile steel. Timber buildings should generally be extended with light frame structures and cladding rather than masonry.

C7 Conserve the rhythm of the neighbourhood by maintaining the lot sizes, housing style and prevalence of hipped and pitched roofs. Preserve the established setbacks for each street.

C8   Encourage adaptive reuse of non-residential buildings in the neighbourhood.

C10 Preserve the consistency and simplicity in built form, style and materials of the neighbourhood.

C11 Maintain the existing roof forms, setbacks and fencing styles prevalent in each street.

C16 Setbacks of front walls and front verandahs within the neighbourhood are to be a minimum of 1m however, where the established setback in the immediate area (within 3 houses of the object site) is different, the setback for new development should be consistent with the prevailing setback.

C17 Maintain roof forms with pitched, gable or hipped roofs.

C18 The use of traditional timber, stone or render finishes, corrugated iron roofing (custom orb profile steel) and timber windows are encouraged.

23. The objectives and the controls in C3.13 that apply to the conversion of existing non-residential buildings are:

Objectives

O1 Development encourages the adaptive re-use of non-residential buildings for residential uses that

a. retain heritage value of the building;

b. maximise the environmental benefits of recycling buildings and minimises waste;

c. provide a high level of resident amenity;

d. is compatible with the character of the neighbourhood and streetscape;

e. represent high quality urban and architectural design; and

f. does not have a significant adverse amenity impact on surrounding land.

Controls

C1 The existing character of the building is retained and/or enhanced.

C2 Increases in floor space are contained within the existing building envelope.

C3 The amount of demolition is minimised and the amount of recycling of site and building materials is maximised.

C4 The conversion provides an adequate level of residential amenity in terms of acoustic privacy, private open space, solar access and visual privacy.

Note: due to the larger scale and form of some non-residential buildings, innovative design measures that retain the heritage value of the building such as removing internal parts of the building to create courtyards or open to the sky atria may be appropriate to achieve residential amenity and areas for open space with appropriate drainage.

C5 The appearance of the building integrates with and enhances the streetscape.

C6 Landscaped open space to incorporate a planting area is provided to cater for the recreation needs of residents and enhance the environmental sustainability of the development.

24. Appendix B of the DCP applies to certain building typologies with Section 12 applying to Warehouses and Factories and whilst the section includes particular dates for characteristic structures being from the 1880s to 1930s and the warehouse building was built outside that period, the parties agree that the section provides some guidance on how such structures should be redeveloped.

The issues

25. The contentions in the case are contained in the council’s Amended Statement of Facts and Contentions, Exhibit 1. A number of the contentions have been addressed through the preparation of amended plans however those that remain are: Streetscape and Urban Design; Excessive FSR; Inadequate landscaped area and excessive site coverage; Adverse impact on residential amenity through increased height and bulk; Overdevelopment.

26. Two objections to development standards accompany the application pursuant to the provisions of Clause 4.6 of the LEP. For consent to be granted, the Court must uphold those objections.

The evidence

27. Expert town planning evidence was heard from Mr S Harding for the applicant and Ms D Laidlaw for the council, co-authors of a Joint Report, Exhibit 3. The architect for the development, Mr A Nolan, assisted the Court in relation to perspective diagrams that were in evidence, Exhibit K.

28. That plan was prepared in response to a similar diagram prepared by Ms Laidlaw, DL2 in Exhibit 3. The purpose of the diagrams is to attempt to delineate the extent that the rooftop addition would be visible from McDonald Street. Both diagrams relied on photographs and superimposed a frame of the proposed building without survey reference of adjoining buildings being available. Therefore the accuracy of the diagrams varied. Following cross examination and Mr Nolan superimposing his methodology on Ms Laidlaw’s plan to account for a consistent vanishing point (Exhibit L), Ms Laidlaw conceded that the extent of impact would be less than shown in DL2. Despite this fact, she maintained the extent of impact was excessive. Mr Harding agreed that the view of the church spire would be lost from the point in McDonald Street. This issue was also discussed during the site view.

29. The planning experts agree that the height of the development as viewed from immediately in front of the site on Curtis Road will be very similar to the current building, as would be the overall scale and massing from that vantage point. There would be positions in the front gardens of dwellings opposite and also on the upper levels of dwellings where the additional volume would be more readily apparent. They also agree that there will be views from positions south east on Curtis Road, north west in Curtis Road and in nearby McDonald Street from which the proposed additional structure (i.e. that part which rises above the existing roof and parapet) will be visible from the public domain.

27. They agree that it is these views from which the proposed additional structure will be most visible, noting the angle of view available across the setback of the adjoining Church building and that it would be visible from within Curtis Road back towards the intersection with Darling Street. They note that this view is impacted by vegetation to various extents but disagree as to whether or not the screening should be taken into account as a moderating impact. Ms Laidlaw agrees that landscaping is valuable in softening the impact of new built form but that it should not be relied on to screen otherwise unsatisfactory physical impacts.

28. The experts disagree as to the consequences of being able to see the building, and more particularly the new bulk/roof structure that is in addition to the existing envelope, in the locations described above.

29. Mr Harding says that the proposed development, in an orderly and economic manner, seeks to utilise the existing fabric of a substantial building. Key elements of that building, in particular shared boundary walls and the parapet, maintain the status quo by being retained in the proposed design. Changes to the external fabric, by way of increased setbacks and the like, would fundamentally change the relationship of the building to adjoining properties resulting in impacts that are avoided by the current design, primarily to rear yards and back of dwelling fronting McDonald Street.

30. He notes that there are two main differences between the current building and the proposed design in terms of visual appearance. A pitched roof has been added, albeit in the form of a mansard style roof, and the front façade has been adjusted to accommodate a residential use with north facing balconies in contrast to the relative expanse of existing brickwork in the existing building. He says both of these outcomes are appropriate in the context of the site, in particular, the provision of a pitched roof form on the existing building is a significant step in providing a transition between the industrial “persona” of the building by providing a pitched roof form that is compatible with the character of surrounding residential development and which is a desired element of the Neighbourhood Character. The intent has been to provide an element to the building that reflects the character of surrounding development.

31. Mr Harding says this approach is also evident in the change to the street façade which takes on a residential character resulting in an acceptable streetscape design solution in this conservation area.

32. Ms Laidlaw says the site provides a very substantial building envelope that is already at odds with the modestly scaled single and two storey cottages and terraces that make up the bulk of Curtis Road moving from Darling Street northwards, as well as the residential section of McDonald Street. She says the problem with the current proposal is two-fold: firstly, there are the very substantial additions of building volume to a building that is already of uncharacteristically large bulk and proportions in its residential context and secondly, although the proposal relies on the existing building’s envelope to justify retention of an uncharacteristically scaled development the design make no discernible reference to the building’s industrial past. As such any understanding as to how the building came to be, why it is there, and how its different scale can be explained are all lost. It will simply appear as an oversized residential building of contemporary provenance but one much larger and grander than anything in its residential context.

33. If the industrial heritage of the building is to be relied on as justification for maintaining an envelope of uncharacteristic bulk and scale, Ms Laidlaw says that some meaningful reference should be made to that industrial past in the architectural expression of the new development so as to appreciate the industrial building and why its scale and character is different to the residential character, consistent with the Mort Bay Distinctive Neighbourhood with the many layers of development, land uses and social history that are all readily visible in built form.

34. Alternatively, she says that if the route taken is to adopt a purely residential language then the building ought to be more in keeping with the scale, proportions and character of residential buildings that make up its existing and future context. The changes to the front façade, which is effectively completely rebuilt are fully residential in their language with extensive areas of glazing, prominent projecting balconies that encroach the existing front setback and the pitched roof planes. The addition of these pitched planes which are massive in their own right does nothing to reference the scale and character of the roof-scape of existing dwellings in Curtis Road, these having much smaller footprints and commensurately much smaller and finer detailed roof plans.

35. It is Ms Laidlaw’s view that the significant additions above the existing parapet levels, which will be very visible from the angles approaching the site whether from Darling Street or in the opposite direction on Curtis Road and on McDonald Street, will further exaggerate the scale and bulk of a built envelope that is already substantially larger and uncharacteristic of its surrounds. For this reason Ms Laidlaw concludes the development is unacceptable in terms of both streetscape and character, and it is unacceptable from the viewpoint that the existing envelope, accommodating FSR that is over twice the current allowable, presents ample opportunity to create three comfortable if not substantial residences on this site.

36. There was no agreement between the experts on what the existing and proposed FSR figures are. The difference in calculation between the parties rests on the fact that the applicant has excluded all except for one car parking space from its calculation of gross floor space. The definition states that gross floor area excluded ‘car parking to meet any requirements of the consent authority’. The DCP provides a maximum car parking rate for dwelling houses but no minimum. The proposal is characterised as three dwelling houses. Accordingly, the council says the FSR is 2:1 reflecting its position that the car parking spaces are not ‘required’. The applicant contends the proposed FSR is 1.69:1.

37. The experts do agree that the existing and proposed development exceeds the maximum permissible FSR of 0.7:1; does not provide the minimum required landscaped area of 10% of site area; exceeds the allowable site coverage of 60% and does not comply with the numerical controls for residential development under the DCP including wall height, side setback, building location zone and to that extent along the building is not consistent with the DFC promoted by those controls. They also agree that the additional bulk, which Mr Harding refers to as primarily contained within a roof form, (i.e. over and above the existing building) would be visible above the existing parapet/wall height as viewed in Curtis Road on approaches for the south and north, McDonald Street/Lane and, according to Ms Laidlaw, also from adjoining properties in McDonald Street.

38. They agree that a redevelopment which maintained the existing volume of the current building – whilst not the only redevelopment option available – was not inappropriate because the site did not suit a conventional arrangement of dwelling houses with gardens to the rear. The main areas of dispute concern the merit of enlarging this existing envelope and the question of whether the architectural language of the existing industrial/warehouse building should be retained and if so, whether it had in fact been retained.

39. In relation to the landscaped area non-compliance, Ms Laidlaw notes that because the front wall is to be rebuilt, there is opportunity to slightly increase the setback and provide some softening of the large built form. She says the area available should not be encumbered by overhanging balconies as in the case of the current design. Mr Harding notes that the proposed roof top landscaping makes a more significant contribution than would a southern garden almost always overshadowed. He says the landscaped area at the front of the dwelling is not inconsistent with other setbacks within the street, being an improvement over the current setback and absence of landscaping.

40. The experts disagree as to whether the objections to the development standards for FSR and landscaped area are well founded.

Findings and conclusions

44. There are three preconditions to the grant of consent. The first is whether the development standard for landscaped area should be varied, the second applies to the variation of the development standard for FSR and the third requires satisfaction of the matters in Clause 6.11(3) of the LEP as it relates to the adaptive reuse of buildings in the R1 zone. All must be satisfied for consent to be granted.

45. Clause 4.6 of the LEP provides:

4.6 Exceptions to development standards

(1) The objectives of this clause are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Director-General has been obtained.

(5) In deciding whether to grant concurrence, the Director-General must consider:

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Director-General before granting concurrence……..

46. Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 considered a similar clause under the provisions of State Environmental Planning Policy No. 1- Development Standards (SEPP1). This requires consideration as to whether compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard.

47. The objectives of Clause 4.3A require that a landscaped area is provided that is suitable for substantial tree planting and for the use and enjoyment of residents, to maintain and encourage a landscaped corridor between adjoining properties, to promote the DFC of the neighbourhood, encourage ecologically sustainable development by maximising the retention and absorption of surface drainage water on site and minimising obstruction to underground flow of water whilst controlling site density and limiting building footprints.

48. The existing building occupies the majority of the site with the exception of the 1.5m setback to Curtis Road and a narrow strip to the west of the building that is currently incorporated into the yards of the adjoining residential properties. The latter area would be retained and the current concrete setback would be punctuated with planter beds. The proposed landscaping involves the use of twining climbing plants (pyrostegia venusta) in that setback area to trail up the façade of the building. The level 3 planter boxes would be 600mm deep and be planted with robust plant species able to accommodate hot summer afternoon sun such as succulent species. No tree planting is proposed.

49. Whilst the proposal provides for the introduction of planting, there is no opportunity to plant substantial trees as the balconies overhang the ground level planters. The application relies on a ‘contemporary’ solution to the provision of landscaped area and that is through the use of roof top gardens and vertical planting. There is no evidence of this approach in the locality and I do not consider it to be consistent with either the existing character or the DFC. The objectives of the control are not met. Accordingly, it is not appropriate to uphold the exception to the development standard.

50. The objectives of the FSR development standard are to ensure that residential accommodation is compatible with the DFC of the area in relation to building bulk, form and scale, provides a suitable balance between landscaped areas and built form and minimises the impact of the bulk and scale of buildings.

51. The issue of compatibility has been considered by the Court on many occasions. Roseth SC in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 provided guidance in the assessment of whether a development would be compatible and considered that for a development to be compatible it is to be capable of existing together in harmony and is different to sameness. He stated at [22] it is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, the harmony is harder to achieve. He suggests there are two tests, one is whether a proposal’s physical impacts on the surrounding area are acceptable and the second is if it is in harmony with the buildings around it and the character of the street. He states:

25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity.

26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal’s assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character.

27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape.

28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way.

29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees.

30 Conservation areas are usually selected because they exhibit consistency of scale, style or material. In conservation areas, a higher level of similarity between the proposed and the existing is expected than elsewhere. The similarity may extend to architectural style expressed through roof form, fenestration and materials

52. The existing building forms part of the character of the area and the planning controls anticipate the retention of those non-residential buildings and their conversion to residential developments through the controls for adaptive reuse. The DFC anticipates the new development being integrated into the existing character of the area consistent with the planning controls. The existing character of the Mort Bay distinctive neighbourhood is varied in scale from one to two storeys with generally larger dimensions on the lower slopes. Buildings are uniform in style with traditional materials, setbacks and iron picket fencing. The controls seek to maintain the single storey scale and form except on dominant corners and anticipate pitched roofs, preservation of established setbacks and the consistency and simplicity in built from, style and materials. The upper slopes of the neighbourhood around Darling Street south of Curtis Road and along Ballast Point Road tend to be reflective of the Victorian era development along Darling Street. The built form along these streets varies in scale from one and two storeys with generally larger dimensions that on the lower slopes adjacent to Mort Bay Park. The buildings are uniformly Victorian in style with traditional materials (render and iron), setbacks of 2m and iron picket fencing.

53. Having regard to the evidence, I am satisfied that the physical impacts of the development are satisfactory however, I do not consider that the building would sit in harmony with the buildings around it and the character of the street. The changes proposed to be made to the building are significant and materially change its bulk and form. The use of the metal cladding and the angle of walls may be a “roof” form but it is uncharacteristic of the area and appears as an additional storey when viewed from the north adding considerable to the bulk of the building.

54. There are no buildings in the vicinity of the site that are four storeys and none are anticipated by the planning controls. For these reasons I accept Ms Laidlaw’s evidence that the significant additions above the existing parapet levels, which will be very visible from the angles approaching the site whether from Darling Street or in the opposite direction on Curtis Road and on McDonald Street, will further exaggerate the scale and bulk of a built envelope that is already substantially larger and uncharacteristic of its surrounds. The development is unacceptable in terms of both streetscape and character, and it is unacceptable from the viewpoint that the existing envelope, accommodating FSR that is over twice the current allowable, inconsistent with the objectives of the development standard and incompatible with the character of the area.

55. Having found that the development does not meet the objectives of the development standard, it follow that I cannot be satisfied that the applicant’s written request adequately demonstrates the matters in clause 4.6(3)(a) of the LEP.

56. Clause 6.11 of the LEP has the objective to provide for the adaptive reuse of existing buildings for residential accommodation, retaining buildings that contribute to the streetscape and character of Leichhardt and provide satisfactory amenity for future residents of the area whilst ensuring that development does not adversely affect the quality or amenity of existing buildings in the area. There is no dispute that the existing building has no heritage significance and does not positively contribute to the streetscape and character of the locality.

52. Consent cannot be granted unless the Court is satisfied that the development will not adversely affect the streetscape, character or amenity of the surrounding area; the development will retain the form, fabric and features of any architectural or historic feature of the existing building, and any increase in the floor space ratio will be generally contained within the envelope of the existing building.

53. Having found that the development will adversely impact the streetscape through its significant bulk and scale, the application fails to satisfy the provisions of this clause. In addition, the development retains the side walls of the structure and three internal columns only and therefore fails to retain the fabric and architectural and historic features of the existing building. The façade of the building would be replaced by a modern, glazed façade, more characteristic with residential form. Finally, the increased floor space ratio is the result of additional internal space but most uncharacteristically, the addition of the fourth storey. The application therefore fails to satisfy the provisions of clause 6.11 and must fail.

54. The Orders of the Court are:

1. The appeal is dismissed.

2. Development Application D/2014/156 for partial demolition of an existing warehouse and construction works to create a residential development consisting of 3 townhouses at No 2-8 Curtis Road, Balmain is refused.

3. The exhibits, other than exhibits A, B, C, G, K, L and 1, can be returned.

__________________

Sue Morris

Commissioner of the Court

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Decision last updated: 30 January 2015