Hosking Munro Pty Limited v City of Sydney Council
[2008] NSWLEC 1485
•10 November 2008
Land and Environment Court
of New South Wales
CITATION: Hosking Munro Pty Limited v City of Sydney Council [2008] NSWLEC 1485 PARTIES: APPLICANT
RESPONDENT
Hosking Munro Pty Limited
City of Sydney CouncilFILE NUMBER(S): 10637 of 2008 CORAM: Bly C KEY ISSUES: Development Application :- Alterations and additions to existing residential and commercial building, streetscape, floor space ratio, change of use, building height, car parking, public interest. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Leichhardt Local Environmental Plan 2000
Leichhardt Development Control Plan 2000
State Environmental Planning Policy No. 1 (Development Standards)DATES OF HEARING: 06/11/2008, 07/11/2008 and 10/11/2008 EX TEMPORE JUDGMENT DATE: 10 November 2008 LEGAL REPRESENTATIVES: APPLICANT
Ms H. Irish, barrister
Instructed by McLachlan Thorpe PartnersRESPONDENT
Mr S. Kondilios, solicitor and
Ms C. Rose, solicitor
of Maddocks Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
10637 of 2008 Hosking Munro Pty Limited v City of Sydney Council10 November 2008
This decision was given extemporaneously. It has been revised and edited prior to publication.
JUDGMENT
Introduction
1 This appeal relates to a development application for alterations and additions to the existing residential and mainly commercial six-level building at 1-9 Glebe Point Road, Glebe.
2 The site is situated close to the corner of Parramatta Road or Broadway, and has an area of about 560 square metres, the site being fully occupied by the existing building.
3 The additions mainly comprise a mezzanine floor at the sixth level, having an area of some 229 square metres that is to be used for commercial purposes. The approved residential use at the sixth level of the building is to be replaced with commercial floor space, resulting in the entire building including the associated basement car park being used for commercial purposes.
4 The car park is to be reconfigured and a loading area provided. The alterations to the building mainly involve a reworking of the Glebe Point Road façade including the veranda and its roof, a new opening in the east wall to provide an outdoor terrace at level six, together with various other relatively minor modifications for fire safety purposes.
5 The applicant has now proffered additional amendments to the building, including the removal of a significant part of the steel frame and concrete slab that forms the roof at level six in front of the building.
Planning controls
6 The site is included in the business zone and in the Glebe Conservation Area under Leichhardt Local Environmental Plan 2000. It is included in the Glebe Commercial Neighbourhood under Leichhardt Development Control Plan 2000. The building, now being wholly commercial is, under the LEP, subject to a maximum floor space ratio of 1:1. The existing floor space ratio is about 4.6:1 and this will be increased to about 5:1. The applicant has thus provided an objection under State Environmental Planning Policy No. 1 - Development Standards.
Advertising
7 When the development application was originally advertised, no submissions were received. Subsequently five letters of objection were received, raising matters of concern including the inappropriate appearance of the building in the streetscape, unauthorised building works, failure to comply with applicable planning controls including floor space ratio and building height, and adverse impacts on the conservation area.
Site inspection
8 The hearing began with an inspection of the site and its environs in the company of the parties and the experts. Whilst onsite, I heard from Mr N MacIndoe on behalf of the Glebe Society who explained that the building is excessively bulky and out of scale with surrounding buildings, particularly in the context of the conservation area, and that this is made worse by the prominent pergola structure at the upper level. He agreed that the building would be better with some of the proposed improvements, but more was needed, including the removal of the pergola structure.
Expert evidence
9 Expert evidence was provided on behalf of the respondent council by Mr J Poulton and Miss A Kalodikas. On behalf of the applicant, expert evidence was provided by Mr R Varga, Miss J Hill, and Mr J Lovell.
10 The Statement of Facts and Contentions provided by the respondent council identifies the following five contentions:
- intensity of development and non-compliance with floor space ratio,
- impact of change of use, external appearance which detracts from the conservation area,
- intensification of car parking
- loss of waste storage and
- public interest.
11 As a result of further consideration of the proposal in the light of the proffered amendments to the proposal that occurred during the hearing, the following issues remain in dispute:
- whether the lift overrun/motor room that will continue to project above the top-most roof level of the building should be removed in the interests of the conservation area,
- whether the SEPP 1 objection dealing with the additional and converted commercial floor space should be upheld,
- whether the necessity for reversing of vehicles onto Grose Street at the rear is satisfactory,
- whether the time during which the proposed terrace at level six can be used should be constrained.
Light overrun/motor room
12 Clause 4.5 of the DCP deals with detracting buildings, describing these as being intrusive to the streetscape because of inappropriate scale, bulk, setbacks, setting, or materials. The existing building, the subject of this appeal, is undoubtedly a detracting building. Subclause 2(a) and (b) require that alterations and additions to detracting buildings should remove inappropriate elements or features that are intrusive to the conservation area, and should respect prevailing character in terms of bulk, form, scale, and height.
13 As a result of the numerous design changes to the proposal, Mr Poulton, the respondent’s heritage expert, agreed with Miss Hill, the applicant’s heritage expert, that in terms of the conservation area, the building would no longer be detracting and would instead be neutral. In this regard, I note the proposed changes to the building’s façade and the effective reductions to its bulk by the removal of the concrete-roofed pergola. Mr Poulton supported the changes but was nevertheless of the opinion that the lift motor room structure that projects above the remainder of the building on its eastern side should still be deleted because it would be uncharacteristic. He reached this conclusion notwithstanding the proposed architectural detailing by contending that such built forms are not characteristic of this locality. Miss Hill disagreed, explaining that the lift overrun structure would, taking also into account the provision of appropriate architectural detailing, not be a detracting element.
14 Whilst I agree with Mr Poulton that a better overall outcome would involve the removal of the lift motor room, I have decided that on its merits its removal is not necessary, taking into account Miss Hill’s contention that structures of this form are not entirely uncharacteristic.
15 In the circumstances, I agree that the benefits of its removal would not be sufficient, taking into account the consequence of having to reconstruct the approved lift structure and its mechanicals. In this regard, accepting that the now proposed modifications to the building will result in a significant improvement to its fit within the conservation area, as reflected by the agreement that the building would no longer be a detracting building and would instead be neutral. This represents a considerable benefit to the public interest.
The SEPP 1 objection
16 The applicant’s objection under SEPP 1 identifies the 1:1 floor space ratio development standard in cl 23(1) of the LEP, the existing extent of non-compliance, and the proposed further non-compliance. It notes that the objectives of the development standard are not specifically expressed, and the author of the objection, Mr J Lovell, the applicant’s consultant town planner who is an experienced town planner, assumes that the underlying objectives are to control the impacts created by the bulk and scale of buildings and their intensity of use. Miss Kalodikas, the council’s town planner, agreed.
17 The objection then examines the proposal in the light of these objectives, noting the originally proposed alterations to the building reduced its bulk, and the additional floor space does not alter its bulk or scale. This is because the additional floor space comprises a mezzanine floor that is wholly within the existing building. In this regard, it is to be noted that the more recent modifications to the building, including the removal of the steel pergola structure and the concrete roof slab that it supports, results in a significant further reduction in the building’s bulk. Also of benefit in this context are the proposed improvements to the building’s Glebe Point Road façade that will help it better fit within the conservation area.
18 As for intensity of use, the objection describes the locality in which the site is situated in the context of the suburb profile provisions of the DCP as being most commercially orientated, and seeking to encourage a mixture of uses that will sustain a vibrant public environment. Taking into account the close-by availability of excellent public transport facilities, the likely change in the intensity of use of the building is likely to be relatively minor, and will not impose any adverse impact on the amenity of surrounding lands or the locality. The objection then justifies the variation of the development standard on the basis that its objectives are achieved, and concludes that it is well founded, and to limit the building to the existing floor space would be unreasonable and unnecessary in the circumstances.
19 In the joint town planner’s report, Miss Kalodikas said that the floor space ratio development standard should not be varied, and to support this she said that the amenity of the building would not be consistent with the objectives of the control. She acknowledged that the additional floor space is within the existing building envelope, but that there would nevertheless be adverse impacts on the amenity of the site in terms of traffic and waste, and on the surrounding area in terms of the degree of commercial use that would not be consistent with the character of the area. She was also concerned that the overall appearance of the building would still be detracting, although she made this latter observation before the more recent modifications to the streetscape presentation of the building. Mr Lovell responded by pointing out that the minor nature of the additional floor area is such that any change in the intensity of use would be minor. Moreover, in the light of the desired future character of the locality and taking into account the general availability of services and facilities in the area, the additional floor space should be encouraged.
20 Taking into account the arguments within the SEPP 1 objection itself, and the associated evidence, I am satisfied that the SEPP 1 objection should be upheld. Of particular importance is the fact that the additional floor space will not, in terms of bulk and scale, be apparent. Moreover, the overall bulk and scale of the building will be reduced by this proposal that will also, as a result of the various design changes, become in the conservation sense, a neutral rather than a detracting building. The intensity of the use of the site is, in my opinion, of less significance than the bulk and scale question. It is nevertheless satisfactorily answered by the fact that the amount of additional floor space is, in context, minor.
Basement car park
21 The basement car park has been reconfigured so as to provide one additional car parking space to a total of thirteen spaces. A loading area is also provided. Vehicles using four of the parking spaces and the vehicle using the loading area, having driven into the basement in a forward direction will be required to reverse out onto Grose Street. Miss Kalodikas was concerned that this arrangement would be inconsistent with council’s usual condition of consent that would require all vehicles to enter and leave the site in a forward direction.
22 Mr Varga, the applicant’s traffic consultant, however explained that this would not be problematical because Grose Street is, taking into account its width and the fact that the majority of properties that have a rear or secondary frontage to it, use it for their service access, and it can thus be described as a service road. He also referred to provisions in Australian Standard 2890.2 that allow limited on-street manoeuvring.
23 Having inspected Grose Street and observed the manner in which it operates, I agree with Mr Varga for the reasons that he has given, and conclude that this is not a sufficient reason to refuse the application.
The terrace
24 The respondent seeks the imposition of a condition of consent that would limit the use of the sixth level terrace to between the hours of 8am and 10pm, largely to protect the amenity of the close-by residential building known as University House. The applicant says the condition is not required, considering the distance of separation and the already very noisy traffic environment, the subject site and University House both being essentially on the corner of Glebe Point Road and the heavily trafficked Broadway.
25 Taking into account that the terrace can only be used in conjunction with an office use, that is, it cannot be used as for example, a café, and being located in a commercial zone, I agree with the arguments being presented by the applicant and the condition should not be imposed.
Conclusions
26 To conclude, on balance I have been persuaded that the proposed modifications to the building now represent a good outcome, taking into account the applicant’s wishes and the public interest. Indeed, the public interest will receive a significant benefit as a result of the renovation of this building and its subsequent use. Apart from the condition dealing with hours of operation, I understand that the remaining conditions have now been agreed. I also understand that the applicant is to prepare consolidated architectural plans that reflect the proposal that is now sought to be approved.
1. The appeal is upheld.
2. Development Application D/2008/271 for alterations and additions to the existing building at 1-9 Glebe Point Road, Glebe is determined by the granting of development consent subject to the conditions in Annexure A hereto.
3. Exhibit N (the amended plans) is retained.
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- T A Bly
Commissioner of the Court
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