Huntington and MacGillivray v Ashfield Municipal Counncil
[2006] NSWLEC 233
•03/22/2006
Land and Environment Court
of New South Wales
CITATION: Huntington & MacGillivray v Ashfield Municipal Counncil [2006] NSWLEC 233 PARTIES: APPLICANT
RESPONDENT
Huntington & MacGillivray
Ashfield Municipal CounncilFILE NUMBER(S): 11003 of 2004 CORAM: Bly C KEY ISSUES: Development Application :- Demolition, commercial and residential development, impacts on conservation area and streetscape LEGISLATION CITED: Ashfield Local Environmental Plan 1985
Draft Ashfield Local Environmental Plan No. 106
Summer Hill Urban Village Centre Development Control PlanDATES OF HEARING: 21-22/03/2006 EX TEMPORE JUDGMENT DATE: 03/22/2006 LEGAL REPRESENTATIVES: APPLICANT
Mr M Ball, town plannerRESPONDENT
Mr P Jackson, solicitor
SOLICITORS
Pike Pike & Fenwick
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
22 March 2006
Ashfield Municipal Council
JUDGMENT
1 This appeal relates to development application No. 270/2004 which is for the demolition of an existing single storey industrial building and the erection of a three storey mixed residential/commercial development at 150 Smith Street, Summer Hill. More particularly the proposal comprises two retail/commercial tenancies and nine car parking spaces at ground level which together effectively form a podium for the six dwellings at first and second floor levels within two buildings divided by a central courtyard.
2 The site is situated in the Summer Hill urban village. It has an area of about 505 sq m, a width of about 18 m and a depth of about 27 m.
3 The existing dry cleaning premises effectively occupies the entire site which is bounded to the west by a former post office building, to the east by an effectively three storey commercial and retail building, and to the south at No. 4 Moonbie Street immediately behind the site by a part one/part three storey dwelling.
4 The site is zoned General Business 3(a) under Ashfield Local Environmental Plan 1985 (“the LEP”) in which zone the proposal comprising a mixed development is permissible with development consent. Being a mixed development in the 3(a) zone, cl 17 and 40 of the LEP together provide for a maximum floor space ratio of 1.5:1, and having a floor space ratio of 1.3:1 the proposal comfortably meets this requirement.
5 The adjoining post office building is, under the LEP, a listed heritage item and cl 37 relevantly requires the assessment and consideration of the likely effect of the proposed development on its heritage significance. Clause 37 also requires the consideration of the likely effect of proposed development on conservation areas.
6 Draft Local Environmental Plan No. 106 (“the draft LEP”) will amend the LEP and include the site within the Tavistock Estate Conservation Area. This draft LEP, having been advertised, makes the conservation area a relevant matter for consideration in the determination of this development application.
7 Also applicable to the site is the Summer Hill Urban Village Centre Development Control Plan. The Village DCP contains building design guidelines including a two storey height limit, a 9 m maximum parapet or façade height and a maximum height of 7 m between the natural ground level and the uppermost ceiling of the building. The numerical height controls are supplemented by a diagram in Schedule 3 that explains how the 7 and 9 m standards are applied from the street boundary; those heights being projected horizontally therefrom.
8 In relation to façades, the guidelines require that façades of new buildings should relate to the form and character of buildings in the immediate vicinity and that articulation of such façades is encouraged. In relation to building materials the guidelines discourage modern finishes including glass curtain walling, metal cladding and perforated screens. Also the guidelines provide that care needs to be taken in relation to vehicle entrances to ensure that they do not form a destructive element in the streetscape.
9 Council’s Development Control Plan, Access Adaptability and Mobility, is also applicable.
10 The application was advertised and three objections were received raising objections including the following:
- Lack of or incorrect details in the architectural plans and lack of or incorrect information in the statement of environmental effects.
- Overshadowing and overlooking of properties at the rear of the site, particularly No. 4 Moonbie Street. The consequences of excessive bulk and scale of the proposal for No. 4 Moonbie Street.
- Non compliances with council’s planning controls.
- The building would be architecturally and historically unsympathetic in terms of the heritage significance of Smith Street.
- Vehicular access to and from Smith Street would be dangerous. Insufficient car parking will cause over-utilisation of on-street parking and will add to traffic congestion.
11 These objections were explained in detail by the owners of the properties at Nos. 4 and 6 Moonbie Street and the post office building at No. 2 Moonbie Street during the site inspection on the first day of the hearing.
12 Following consideration of a council officer’s report recommending refusal the council decided to refuse the application for 23 reasons including matters of orderly and economic development, heritage impacts, residential design, landscaping, privacy, solar access, car parking, façade fenestration, lighting, ventilation and fire safety.
13 Expert town planning evidence was provided by:
- Mr J Moody, the Court appointed expert, and
- Mr A Johnston, a council planner.
14 Expert heritage evidence was provided by:
- Ms J Hill, the Court appointed expert, and
- Mr R Moore, a council appointed consultant.
15 Joint reports were provided by these experts who also gave concurrent evidence at the hearing. Whilst some of the issues in the tendered statement of issues have been resolved the following issues of concern to the council remain:
1. Whether the proposal will have an adverse impact on the neighbouring heritage item at No. 2 Moonbie Street, the post office building, the heritage streetscape of Smith Street and the heritage significance of the draft Tavistock Estate heritage conservation area.
2. Whether the proposal will have an excessive bulk and scale particularly in terms of its relationship to No. 4 Moonbie Street.
3. Whether the landscaping of the site will be sufficient and satisfactory, particularly in relation to the proposed planter beds on top of the car park and the absence of deep soil planting.
4. Whether the accessible unit meets the requirements of the access DCP.
5. Whether sufficient car parking and facilities for delivery vehicles have been provided.
16 Having considered all of the evidence, including the without prejudice conditions of consent and particularly taking into account the zoning of the land and its relationship to adjoining land, I have been persuaded that apart from the heritage and conservation issue the concerns expressed in relation to the remaining issues are not such as to attract sufficient weight to warrant refusal of the application. I have however, concluded that in relation to heritage and conservation the application does not warrant approval.
17 In relation to the heritage and conservation issue the two experts presented well argued but diametrically opposed conclusions regarding the proposal insofar as it presents itself to the public domain particularly Smith Street. They nevertheless reached agreement in relation to a number of matters. They did not dispute the significance of the conservation area or that the existing building could be removed and replaced with a sensitive infill design. They agreed that the important characteristics of the streetscape include buildings built up to their common frontage line and being generally of a similar height. Most buildings had what they described as a generous two storeys in height and that the façades were enlivened by an overlay of detail. They also agreed that there was a discernible presentation of patterns in façade design including applied attached modelling, plain walls with punched window openings and façades of arcaded inset balconies.
18 In further discussion they also agreed that there were disruptive buildings in the street such as Nos. 140 - 142 Smith Street that were not to be emulated. The dominant window pattern in the façades is vertical when set inside verandas. The dominant finishes comprise face brick with some contrast detailing of render or paint. Whilst they agreed that attached piers on the building façades were a feature of many buildings Mr Moore did not believe they were an essential element in a new design whereas Ms Hill did.
19 According to Ms Hill whilst a three storey building was not inappropriate it needed to be presented as a two storey composition consistent with the predominant two storey built form in the street. She explained that the vertical combination of the windows, louvres and bulkhead treatment in the proposal formed an entirely appropriate two storey presentation.
20 Conversely Mr Moore had no concerns about the building having a three storey expression believing that such an expression would be appropriate in the conservation area. He reached this conclusion arguing that the significant cornice and parapet zone on other contributory buildings in the streetscape should be used as a basis of expressing a second upper level or third storey on this site. He also observed that despite the attempts at producing a two storey presentation the building would still be seen as having three storeys, especially at night. He added that the problem with this design was not the three levels, instead it is the inappropriateness of the character that the building would assume through the combination of the painted render piers, the window dressings and the bulkhead.
21 In her oral evidence Ms Hill explained how the streetscape presentation of buildings in the vicinity of the site had site features that indicated a largely vertical presentation. Mr Moore disagreed arguing that the division of these façades into bays was much more subtle and that care should be taken not to over-emphasise any notion of verticality.
22 Having considered this issue by a further examination of the streetscape photographs I agree with Mr Moore, and whilst accepting that there is some indication of verticality in the façades there are also elements of horizontality as expressed by the parapet designs. There can be no doubt that the design of the proposal comprising as it does strong vertical elements with a minimalist parapet stands in considerable contrast to the contributory buildings in the streetscape. This mainly results from the strong contrast produced by the rendered and coloured vertical elements in the design by comparison with the more subtle design elements of other buildings in the street.
23 In the circumstances I also agree with Mr Moore that the third storey of this building can be expressed as such and should be responsive to the parapets of the contributory buildings in the street. In this regard I do not accept that a design could not be produced that maintains to the extent necessary the strength of a solid façade. More generally I would comment that accepting as I do that a three storey building on the site is entirely appropriate, attempts to overly disguise the third storey would be unnecessary and possibly even inappropriate.
24 Whilst the DCP refers to the articulation of new building façades and other design techniques the requirement of s 8.2(c) which requires that the façades of new buildings should relate to the form and character of buildings in the immediate vicinity must take precedence.
25 Finally, although replication or mimicry is clearly undesirable the design presented to the Court is in my opinion not sufficiently responsive to the design cues that are presented by the buildings in the vicinity to warrant approval.
26 In the absence of any evidence in the joint statement by the heritage experts in relation to any particular problematical relationship between the proposal and the post office building, and given my decision that the appeal should be dismissed, it is unnecessary for me to comment on that matter.
27 The orders of the Court will therefore be that:
- 1. The appeal is dismissed.
2. Development application No. 270/2004 for the demolition of an existing single storey industrial building and the erection of a three-storey mixed residential/commercial development at 150 Smith Street, Summer Hill, is determined by the refusal of development consent.
3. Exhibit A is retained.
- ___________________
- T A Bly
Commissioner of the Court
rjs
0
0
3