IPM Holdings Pty Ltd v Inner West Council

[2019] NSWLEC 1182

Land and Environment Court

New South Wales

Medium Neutral Citation:	IPM Holdings Pty Ltd v Inner West Council [2019] NSWLEC 1182
Hearing dates:	4-6 February 2019
Date of orders:	18 April 2019
Decision date:	18 April 2019
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The orders of the Court are:  (1)   The Applicant is granted leave to rely on amended plans, including amended landscape plans; (2) The Applicant is to pay the Respondent’s costs that are thrown away as a result of amending the development application, as agreed or assessed under s 8.15 of the Environmental Planning and Assessment Act 1979; (3)   The appeal is upheld; (4)   The Applicant’s development application DA D/2017/491, for demolition works and construction of a four storey shop top housing development with basement parking for 23 cars, at 731-735 Darling Street, Rozelle, is determined by the grant of consent, subject to the conditions attached hereto at Annexure ‘A’; (5)   The exhibits are returned, except Exhibits A, B and 1.
Catchwords:	DEVELOPMENT APPLICATION: shop top housing development – whether the proposed development is compatible with the desired future character of the area – whether clause 4.4A of Leichhardt LEP 2013 applies – overlooking and overshadowing impacts
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013
Cases Cited:	Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Texts Cited:	Leichhardt Development Control Plan 2013
Category:	Principal judgment
Parties:	IPM Holdings Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Barrister: C McEwen SC (Applicant)   Solicitors: Addisons Lawyers (Applicant) M Bonanno, Inner West Council (Respondent)
File Number(s):	2017/384812
Publication restriction:	No

Judgment

1. COMMISSIONER: IPM Holdings Pty Ltd (the Applicant) has appealed the decision of Inner West Council (the Respondent) to refuse its development application (D/2017/491) for demolition of the existing building (with the exception of the heritage façade, entryways and awnings), along with excavation for one basement level of car parking, and construction of a four storey shop top housing development (the proposed development) on Lot 100, DP 1146981, also identified as 731-735 Darling Street, Rozelle (the Subject Site).

2. The Subject Site is located on the corner of Darling and Cambridge Streets, Rozelle, and currently accommodates a two storey brick commercial building that is built to its Darling Street boundary and to part of its Cambridge Street boundary. A customer car park and loading area are located on the rear portion of the Subject Site. Both are accessed from an entry on Cambridge Street.

3. The Subject Site is zoned B2 Local Centre under the provisions of Leichhardt Local Environmental Plan 2013 (LLEP).

4. The Subject Site is located within the Darling Street Sub Area of the Rozelle Distinctive Neighbourhood as identified under the provisions of Part C2.2.5.5 of the Leichhardt Development Control Plan 2013 (LDCP) (see below at [38(3)(a)(i)]), and which is described as follows:

“The Darling Street Sub Area is characterised by a vibrant mix of restaurants, retail shops, community facilities and commercial enterprises. The character of buildings located south-west of Victoria Road has remained largely unchanged and has an established two storey scale (with the inclusion of the occasional larger building). The predominant style of buildings is traditional shop top housing. The architectural style is mostly late Victorian with some early 1900s Federation styled buildings.”

5. The existing building on the Subject Site, including its interiors, is listed as a heritage item of local significance (Item I748) under LLEP. However the site is not located within a heritage conservation area.

6. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act), and is heard under s 34 of the Land and Environment Court Act 1979 (the LEC Act)

7. The Court convened a conciliation conference with the Parties on 18 June and 4 July 2018. I presided over the conciliation conference that was held on-site and at Court. The Parties were unable to resolve contentions between them during the conciliation conference and so the conference was terminated.

8. The Parties appeared before the Registrar for further directions on 11 July 2018, and consented to me disposing of the matter at hearing.

The proposed development

9. The proposed development includes the following elements:

1. a single basement level car park (accommodating 23 car spaces, 2 motorcycle spaces, and 10 bicycle spaces) setback 3.0m from the north-western boundary and built to the boundary of the other allotment boundaries;

2. lift access from the basement to the retail premises on the ground floor (first storey), and to the residential premises above;

3. at ground floor level:

1. retail floor space (370 m²) in two retail tenancies, which would be:

1. set back 3.35m to the north-western boundary;

2. built to the boundary of the other allotment boundaries; and

3. contain two retail car places and a loading area, all accessible from Cambridge Street;

2. separate retail and residential waste rooms with two mechanical plant rooms, a pump room, and an entry foyer and residential lobby, also at ground level;

4. sixteen residential units on levels 1, 2 and 3, and in relation to which:

1. level 1 (the second storey) would contain 5 two-bed and 2 one-bed residential units, that would be:

1. setback close to, and just behind, the existing façade of the heritage building, which is proposed to be retained, to Cambridge and Darling Streets;

2. setback 5.12m - 6.0m to the north-western boundary;

3. setback at least 6m to its south-western boundary to 1, 3, 5 and 7 Oxford Street;

2. level 2 (the third storey) would also contain 5 two-bed and 2 one-bed residential units, and which would have:

1. a front setback to Darling Street of 3.56m;

2. a side setback to Cambridge Street of between zero and 2.2m;

3. setbacks of at least 6m to its south-western boundary to 1, 3, 5 and 7 Oxford Street;

3. level 3 (the fourth storey) would contain 2 three-bed units, and which would have:

1. a front setback at floor level to Darling Street of 3.56m;

2. a setback from Darling Street to its front balcony of 10.15m, with that area containing a 8.35m wide non-trafficable roof area, and a 1.8m wide planter;

3. a setback to Cambridge Street by 1.65 m at floor level with a further 3.95m to its rear balcony and side wall, containing a 2.15m wide non-trafficable roof area, and a 1.8m wide planter; and

4. a setback of at least 6m to its south-western boundary to 1, 3, 5 and 7 Oxford Street, and a further 3.6m to its balcony at that level, within which there would be a 1.8m wide non-trafficable roof area, and a 1.8m wide planter.

Resident submissions

10. At the commencement of the hearing a further on-site view was undertaken during which the following individuals made submissions to the Court in relation to the appeal:

1. Ms Jane Keble Johnston, a resident of Cambridge Street, who said that:

1. her submission was also made on behalf of other residents in Cambridge Street, notably the residents of numbers 5, 7, 12 and 29 Cambridge Street;

2. the amendments proposed by the Applicant to its development application, whilst welcome, did not go far enough to address a range of concerns held by residents, including concerns related to:

1. heritage;

2. urban design;

3. noise;

4. solar access and communal open space;

5. traffic, car parking and on Street parking;

6. potential damage to adjoining properties;

7. waste management

3. she would prefer a smaller scale development on the Subject Site, consisting of a two storey scale structure with 14 or less units.

2. Ms Astrid Hamann, a resident of Oxford Street, who expressed concerns in relation to:

1. the compatibility of the proposed development with the desired future character of the area;

2. the bulk and scale of the proposed development, in particular in relation to:

1. its presentation to Cambridge Street, which she said was dominating and daunting, and which she felt would dwarf the neighbourhood;

2. its presentation to Oxford Street, which she said would be perceived as a ‘big square block of concrete flats’;

3. the potential loss of privacy to adjoining properties;

4. the potential impact of the proposed development on the original heritage building upon which it would be constructed;

5. setbacks from the proposed development to neighbouring properties on Cambridge Street and Oxford Street;

6. the adequacy of the landscaping in the proposed development;

7. the sufficiency of the proposed car parking spaces within the proposed development;

8. the potential impact of the proposed development on traffic in the local area;

3. Mr Henri Allen-Narker, a resident of Cambridge Street, who said that he held concerns in relation to:

1. potential traffic impacts of the proposed development

2. the adequacy of the proposed car parking and access arrangements for the proposed development; .

4. Ms Therese Dhuyvetter, a resident of Oxford Street, who said that her concerns in relation to the proposed development included:

1. potential heritage impacts;

2. the scale, bulk and height the proposed development which, in her opinion, detracted from the heritage values of the existing building on the Subject Site;

3. the setbacks of the proposed development to adjoining lots at 1, 3, 5 and 7 Oxford Street which were, in her opinion, inadequate;

4. the potential overshadowing impacts of the proposed development to properties on Oxford Street;

5. the potential overlooking impacts of the proposed development to properties on Oxford Street;

6. whether the proposed development, if approved, would provide an undesirable precedent for future development in the area;

7. the potential parking and traffic impacts of the proposed development;

8. whether the proposed development was in keeping with the desired future character of the local area;

5. Mr Trevor McIntyre, an owner of a property adjoining the proposed development on Cambridge Street, who said that he was opposed to the Applicant’s development application because its approval may impede his capacity to improve his property through the inclusion of a first storey addition to take advantage of potential water views. Mr McIntyre also said he held concerns in relation to potential overlooking impacts from the proposed development.

11. An extensive set of submissions that had been made by residents in relation to the proposed development was also tendered as evidence by the Respondent. I have read these submissions, and find the concerns contained within them reflect the range of concerns expressed by resident submissions made on-site during the view.

12. This tender included submissions from a number of owner/residents of properties in both Cambridge Street and Oxford Street, or their representatives, in particular submissions from owners of properties adjoining the Subject Site at 10 Cambridge Street, and 1, 3 and 5 Oxford Street. It also included ten pages of a petition, containing 81 signatures, expressing an objection to the proposed development on the basis of its potential impacts in relation to:

1. the heritage values of the existing building;

2. the proposed fourth story which was said to be not in keeping with the desired future character of the area;

3. parking and traffic; and

4. the establishment of an undesirable precedent for the area.

Matters requiring resolution in this appeal

13. At the commencement of the hearing, the Applicant sought leave to rely on amended plans, and leave was granted without objection.

14. The Parties advised that several issues that had been in contention between them at the commencement of the appeal had been resolved on the basis of the amended plans, and/or by conditions of consent agreed between the Parties. These included contentions relating to:

1. traffic, in relation to which the original contention raised was not pressed by the Respondent as traffic contentions had been satisfactorily resolved by recommendations of the traffic experts within their joint expert report. The Respondent said that, as a consequence of the Applicant’s agreement with these recommendations, traffic related contentions were no longer a reason to refuse the Applicant’s development application;

2. basement access, in relation to which the Respondent said that a redesign proposed by the Applicant, as represented in amended plans, was acceptable, and was supported the traffic experts;

3. the design of the loading bay, in relation to which it was confirmed that the design now accommodated a small rigid vehicle, as required by the Council.

15. The Parties also agreed that a redesign of the basement car park entry, that had included a lowering of the roof over that entry, had also provided improved landscaping outcomes through the provision of additional, and deeper, soils for plantings. These outcomes were confirmed in amended landscape plans that were tendered as evidence at the hearing. The Applicant sought leave to rely on these amended landscape plans, which was also granted without objection.

16. In opening submissions, Mr Bonanno, for the Respondent said that while several matters remained in contention between the Parties, the principal contention was whether the proposed development was compatible with the desired future character of the area. Mr Bonanno said that, in the submission of the Respondent, it was not.

17. He added that, because there was no height of buildings development standard applicable to the Subject Site, Council relied on the floor space ratio (FSR) development standard within LLEP to guide the bulk and scale of potential developments on the site, and that the proposed development exceeded that standard.

18. Mr Bonanno said that, while the general nature of the proposed development was acceptable to the Respondent, the proposed fourth storey was not. He submitted that it was the Respondent’s position that it was this fourth storey element that gave rise to the proposed development’s incompatibility with the desired future character of the area.

19. Mr McEwan, for the Applicant, submitted that the proposed fourth storey, as represented by the amended plans:

1. was a relatively small component of the proposed development’s scale as represented by its FSR, and that its removal would reduce its FSR from 1.48:1 to 1.28:1 which he said was a marginal reduction;

2. was recessive in design, and so would not be read as a dominant feature of the building by the casual observer;

3. was a small component of the overall development that he said represented the ‘inclusion of an occasional larger building’, which was a feature of the existing character of the area, and which was a feature that the desired future character statement sought to retain;

4. was, based on the above points, compatible with the desired future character of the area.

20. Flowing from these submissions, the Parties agreed that the principal question for resolution in this appeal was whether the Applicant’s proposed development, including the proposed fourth storey, was compatible with the desired future character of the area.

21. They also agreed that, on the basis of resolving this contention, it would be possible to confirm whether or not the proposed development was compliant with the FSR development standard applicable to developments on the Subject Site, under the provisions of either cl 4.4 of LLEP, which provided a 1:1 FSR for the Subject Site, or cl 4.4A, which provided a FSR of 1.5:1 (see below at [36(3)] and [36(4)], respectively).

22. The Parties further submitted that the other remaining contentions to be addressed in the appeal concerned the potential impacts of the proposed development in relation to:

1. heritage, which would be partly addressed through a consideration of the compatibility of the proposed development, including the proposed fourth storey, with the desired future character of the area;

2. overlooking in relation to adjoining properties on Oxford Street and Cambridge Street; and

3. overshadowing arising from the proposed development in relation to properties on Oxford Street.

23. These further contentions are also addressed below at [89], [99] and [107], respectively.

Statutory Considerations

Environmental Planning and Assessment Act 1979

24. The objects of the of the EP&A Act are as follows:

(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural and other resources,

(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,

(c) to promote the orderly and economic use and development of land,

(d) to promote the delivery and maintenance of affordable housing,

(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,

(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),

(g) to promote good design and amenity of the built environment,

(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,

(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,

(j) to provide increased opportunity for community participation in environmental planning and assessment.

25. Section 4.15(1) of the EP&A Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

26. Section 4.15(3A) of the EP&A Act further provides that:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

.

State Environmental Planning Policy No 65 Design Quality of Residential Flat Development

27. State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (‘SEPP65’) aims to improve the design quality of residential flat development in New South Wales, and recognises that the design quality of residential flat development is of significance for environmental planning for the State due to the economic, environmental, cultural and social benefits of high quality design.

28. SEPP65 applies to residential flat buildings, shop top housing and mixed use developments with a residential component, if the building has 3 or more storeys and contains 4 or more dwellings.

29. SEPP65 sets a consistent policy direction for residential flat development in New South Wales and provides a uniform State-wide framework for more detailed planning for residential flat development. It has a statutory effect on development and as a consequence may supplement the provisions of state environmental planning policies, local environmental plans and development control plans.

30. The policy came into effect on 17 July 2015 and applies to development applications for residential flat development made after that date. It is applicable to the development application that is the subject of the current appeal.

31. SEPP65 has a close and integrated relationship with the Apartment Design Guide (‘ADG’) published by the NSW Department of Planning and Environment (see below at [39]).

32. In relation to this appeal, the following provisions of SEPP65 are of particular relevance:

1. Clause 6, concerning the relationship of SEPP65 with other environmental planning instruments, and which provides:

(1)  In the event of an inconsistency between this Policy and another environmental planning instrument, whether made before or after this Policy, this Policy prevails to the extent of the inconsistency.

2. Clause 6A, concerning development control plans in relation to the ADG, and which provides:

(1) This clause applies in respect of the objectives, design criteria and design guidance set out in Parts 3 and 4 of the Apartment Design Guide for the following:

(a) visual privacy,

(b) solar and daylight access,

(c) common circulation and spaces,

(d) apartment size and layout,

(e) ceiling heights,

(f) private open space and balconies,

(g) natural ventilation,

(h) storage.

(2) If a development control plan contains provisions that specify requirements, standards or controls in relation to a matter to which this clause applies, those provisions are of no effect.

(3) This clause applies regardless of when the development control plan was made.

3. Clause 28(2), which provides:

In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration):

(a) the advice (if any) obtained from the design review panel, and

(b) the design quality of the development when evaluated in accordance with the design quality principles, and

(c) the Apartment Design Guide.

4. Schedule 1, which provides design quality principles in relation to residential apartment development, and in particular Principle 2, concerning built form and scale, which was the subject of evidence at the hearing, and which provides as follows:

Principle 2: Built form and scale

Good design achieves a scale, bulk and height appropriate to the existing or desired future character of the street and surrounding buildings.

Good design also achieves an appropriate built form for a site and the building’s purpose in terms of building alignments, proportions, building type, articulation and the manipulation of building elements.

Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook.

Leichhardt Local Environmental Plan 2013 (LLEP)

33. Development on the Subject Site is subject to the provisions of LLEP. As previously identified, the Subject Site is zoned B2 Local Centre under the provisions of cl 2.3 of LLEP.

34. The objectives of the B2 Local Centre zone as provided within cl 2.3 of LLEP are to:

• provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

• encourage employment opportunities in accessible locations.

• maximise public transport patronage and encourage walking and cycling.

• ensure that development is appropriately designed to minimise amenity impacts.

• allow appropriate residential uses to support the vitality of local centres.

• ensure that uses support the viability of local centres.

• provide a mixture of compatible land uses.

• reinforce and enhance the role, function and identity of local centres by encouraging appropriate development to ensure that surrounding development does not detract from the function of local centres.

• integrate suitable business, office, residential, retail and other development in accessible locations

35. Within this B2 zone, a shop top housing development, such as that proposed by the Applicant, is a permissible land use.

36. The following further provisions of LLEP are of particular relevance in this appeal:

1. Clause 2.7, concerning demolition works, which provides that the demolition of a building or work may be carried out only with development consent;

2. Clause 4.3 concerning height of buildings; but which provides no height of building development standard for the Subject Site;

3. Clause 4.4, which identifies the Subject Site as a site with the label ‘N’, and which also identifies classifies it as an ‘Area 1’ lot, on the Floor Space Ratio (FSR) map, and which therefore provides a base FSR development standard for the Subject Site of 1:1. However, land identified as Area 1 on the FSR map is also subject to the provisions of cl 4.4A of LLEP.

4. Clause 4.4A, which provides:

(1) The objective of this clause is to provide floor space incentives for mixed use development that incorporates active street frontages at ground floor level in Zone B1 Neighbourhood Centre or Zone B2 Local Centre.

(2) This clause applies to land identified as “Area 1” on the Floor Space Ratio Map.

(3) Despite clause 4.4, the maximum floor space ratio for a building on land to which this clause applies is 1.5:1 if the consent authority is satisfied that:

(a) the building will have an active street frontage, and

(b) the building comprises mixed use development, including residential accommodation, and

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

(4) Despite subclause (3), an active street frontage is not required for any part of a building that is used for any of the following:

(a) entrances and lobbies (including as part of mixed use development),

(b) access for fire services,

(c) vehicular access.

(5) In this clause, a building has an active street frontage if all floor space on the ground floor of the building facing the street is used for a purpose other than residential accommodation.

5. Clause 4.5, which provides guidance in the calculation of the FSR and site areas of developments;

6. Clause 4.6, which provides for exemptions to developments standards within LLEP, and the requirements for consideration in relation to the requirements for such exemptions to be granted;

7. Clause 5.10, concerning Heritage Conservation, and:

1. the objectives of which are to:

• conserve the environmental heritage of Leichhardt,

• to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

• conserve archaeological sites,

• to conserve Aboriginal objects and Aboriginal places of heritage significance.

2. relevantly, in this appeal, provides as follows:

(2) Requirement for consent

Development consent is required for any of the following:

(a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance):

(i) a heritage item,

(ii) an Aboriginal object,

(iii) a building, work, relic or tree within a heritage conservation area,

(b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item,

(c) disturbing or excavating an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed,

(d) disturbing or excavating an Aboriginal place of heritage significance,

(e) erecting a building on land:

(i) on which a heritage item is located or that is within a heritage conservation area, or

(ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance,

(f) subdividing land:

(i) on which a heritage item is located or that is within a heritage conservation area, or

(ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance.

(3) When consent not required However, development consent under this clause is not required if:

(a) the applicant has notified the consent authority of the proposed development and the consent authority has advised the applicant in writing before any work is carried out that it is satisfied that the proposed development:

(i) is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or archaeological site or a building, work, relic, tree or place within the heritage conservation area, and

(ii) would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place, archaeological site or heritage conservation area, or

(b) the development is in a cemetery or burial ground and the proposed development:

(i) is the creation of a new grave or monument, or excavation or disturbance of land for the purpose of conserving or repairing monuments or grave markers, and

(ii) would not cause disturbance to human remains, relics, Aboriginal objects in the form of grave goods, or to an Aboriginal place of heritage significance, or

(c) the development is limited to the removal of a tree or other vegetation that the Council is satisfied is a risk to human life or property, or

(d) the development is exempt development.

(4) 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).

(5) Heritage assessment - The consent authority may, before granting consent to any development:

(a) on land on which a heritage item is located, or

(b) on land that is within a heritage conservation area, or

(c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

Leichhardt Development Control Plan 2013

37. Development on the Subject Site is subject to the provisions of LDCP, the purpose of which is to provide:

“to facilitate development that gives effect to the aims and objectives, including the objectives of the land zones under Leichhardt Local Environmental Plan 2013, and to provide for the matters set out in s74C of the Environmental Planning and Assessment Act 1979.”

38. The following sections of LDCP are of most relevance in this appeal:

1. Part A includes the Introduction, outlines how the Development Control Plan works, Council’s approach to the notifications, and statutory information about the implementation of the Development Control Plan;

2. Part B is called ‘Connections’, and includes objectives and controls which support health and wellbeing, social inclusion, creativity, employment and economic opportunity;

3. Part C is called ‘Place, and includes:

1. Suburb Profiles, Distinctive Neighbourhood Character Statements, objectives and controls, and:

1. Section C2.2.5.5 (a) of LDCP confirms that the Subject Site is located within the Darling Street Sub Area, and forms part of of the Rozelle Commercial Distinctive Neighbourhood as described in s C2.2.5.5. The desired future character of the Darling Street Sub Area is defined by objectives supported by a series of controls, which include, most relevantly for the purposes of this appeal:

“Darling Street Sub Area

Objective

To facilitate development that is consistent with the Desired Future Character and Controls for the Distinctive Neighbourhood.

Controls

…

C5 Maintain a two storey scale for residential development along Darling Street. Where sites are developed for mixed commercial/residential uses, a maximum building wall height of 7.2m applies.

…

C8 Development is to be consistent with any relevant objectives and controls within the Rozelle Commercial Distinctive Neighbourhood.

Rozelle Commercial Distinctive Neighbourhood

Objective

To facilitate development that is consistent with the Desired Future Character and Controls for the Distinctive Neighbourhood

Controls

…

C2 Promote a mix and variety of uses and building styles that enhance and contribute to the character and identity of the neighbourhood, whilst protecting significant prominent buildings and the townscape.

C3 Promote a residential/commercial mix in the retail part of the neighbourhood by allowing shop top residential development subject to amenity, density and streetscape controls.

C4 Maintain the predominant bulk, scale and siting of buildings compatible with adjoining development and the neighbourhood generally.

…

C6 Maintain and enhance the character of the area by retaining original buildings where appropriate and keeping new development complementary in architectural style, form and materials.”

2. Section C3.2, which includes controls in relation to side boundary setbacks, and which requires that building setbacks shall comply with the numerical requirements set out in the side boundary setback graph referred to as Figure C129;

3. Section C4.2, concerning site layout and building design, and which provides the following controls in relation to height and setbacks

“Height

C1 Building height is compatible with the surrounding prevailing street wall height and does not overbear the public domain.

C2 Where adjoining a building that is substantially taller than the prevailing streetscape height, the development achieves a height that provides a transition between the taller building and the prevailing streetscape height.

Note: Exceptions to this control are appropriate where the taller building is a landmark and its’ landmark status should be retained due to its contribution to the character of the streetscape.

Setbacks

C3 Where in the B1 Neighbourhood Centre Zone or B2 Local Centre Zone, the setbacks to the front and side boundaries of the property are to reflect the existing character and prevailing setbacks of the streetscape.

C4 Development is to have a zero setback where existing or neighbouring properties are built to the front or side boundaries; or the street reflects a coherent street wall with minimal separation existing between buildings.”

4. Clause C4.5, concerning interface amenity and which provides, most relevantly in this appeal, the following objectives and controls:

“Objective

O1 To ensure that development does not impact the surrounding area or cause unreasonable nuisance to any other use by way of:

….

e. overly bulky or overbearing development that significantly reduces outlook or privacy.

Controls

C2 Where a site adjoins land in a residential zone:

a. minimum rear building setback at the ground floor is 3m;

b. minimum rear building setback at first floor and above is 6m; and

c. maximum building height is compatible with the height of existing or approved buildings.

C3 Where for new buildings adjoining land in a residential zone, the appearance of building bulk should be reduced by: a. increased setbacks above the ground floor; b. wall modulation in the form of recesses and projections; and c. elements of a finer scale to the main structural framing.”

2. General Provisions including controls for both residential and non-residential development; and

3. Non-residential Provisions which provides for types of non-residential development, irrespective of the zone.

Apartment Design Guide

39. The ADG published by the NSW Department of Planning and Environment, which provides consistent planning and design standards for residential apartments in New South Wales.

40. Part 2 of the ADG explains the application of building envelopes and primary controls including building height, floor space ratio, building depth, and building separation distances. It provides tools to support strategic planning processes in the preparation of planning controls, and includes:

1. Section 2F Building Separation, with the following aims:

1. to ensure that new development is scaled to support the desired future character with appropriate massing and spaces between buildings;

2. to assist in providing residential amenity including visual and acoustic privacy, natural ventilation, sunlight and daylight access and outlook;

3. to provide suitable areas for communal open spaces, deep soil zones and landscaping.

41. Part 3 of the ADG provides objectives, design criteria and design guide for the siting, design and amenity of apartment development. The following specific section of Part 3 of the ADG is of relevance in this appeal:

1. Section 3F concerning visual privacy, and which has the following objectives:

1. Objective 3F-1, which requires that adequate building separation distances I shared equitably between neighbouring sites, to achieve reasonable levels of external and internal privacy which includes:

1. a design criteria requiring that separation between windows balconies is provided to ensure visual privacy is achieved. Minimum required distances from buildings to the side and rear boundaries are as follows:

Building height	Habitable rooms and balconies	Non-habitable rooms
up to 12m (4 storeys)	6m	3m
up to 25m (5-8 storeys)	9m	4.5m
over 25m (9+ storeys)	12m	6m

Note: Separation distances between buildings on the same site should combine required building separations depending on the type of room (see figure 3F.2) Gallery access circulation should be treated as habitable space when measuring privacy separation distances between neighbouring properties.

2. the following definitions in support of the above design criteria:

“A habitable room is:

a room used for normal domestic activities, and includes a bedroom, living room, lounge room, music room, television room, kitchen, dining room, sewing room, study, playroom, family room and sunroom; but excludes a bathroom, laundry, water closet, pantry, walk-in wardrobe, corridor, hallway, lobby, photographic darkroom, clothes-drying room, and other spaces of a specialised nature occupied neither frequently nor for extended periods, as defined by the BCA.

A non-habitable room is:

a space of a specialised nature not occupied frequently or for extended periods, including a bathroom, laundry, water closet, pantry, walk-in wardrobe, corridor, hallway, lobby, photographic darkroom or clothes-drying room, as defined by the Building Codes of Australia (BCA).”

2. Objective 3F-2, which requires that site and building design elements increase privacy without compromising access to light and air and balanced outlook on views from habitable rooms and private open spaces.

Contentions

42. As discussed above at [20], the Parties agreed that the principal contention requiring resolution in this appeal was whether the Applicant’s proposed development, including the proposed fourth storey, was compatible with the desired future character of the area.

43. They further agreed that, on the basis of resolving this question, it would also be possible to resolve whether the proposed development was compliant with the FSR applicable to development on the Subject Site, under the provisions of either cl 4.4 or cl 4.4A of LLEP.

44. As identified above at [36(3)], under cl 4.4 of LLEP, development on the Subject Site is subject a FSR development standard of 1:1. The proposed development has a FSR of 1.48:1, which in breach of this development standard, and on this basis could not be approved unless a written request to vary the development standard, prepared by the Applicant under the provisions of cl 4.6 of LLEP, was considered to be well founded.

45. Notwithstanding the provisions of cl 4.4 of LLEP, development on the Subject Site is also subject to the provisions of cl 4.4A of LLEP, which, if fulfilled, would result in the FSR applicable to the Subject Site being 1.5:1, and on the basis of which the proposed development with be compliant and a cl 4.6 written request to vary the FSR development standard applicable to the Subject Site would not be required.

46. The provisions of cl 4.4A of LLEP were identified above at [36(4)], and require under cl 4.4A(3) that, in order to secure a FSR of 1.5:1, a development on the Subject Site must ensure that, in relation to a proposed built form:

(a) the building will have an active street frontage, and

(b) the building comprises mixed use development, including residential accommodation, and

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

47. The Parties and their experts agreed that the proposed development fulfilled the requirements of cl 4.4A(3)(a) and (b) insofar as the proposed development did provide an active street frontage, and it comprised a mixed use development, that included residential accommodation.

48. Consequently, the Parties confirmed, as previously identified at [20] and [42], that the principal question for resolution in this hearing was:

1. is the proposed development, including its proposed fourth storey, compatible with the desired future character of the local area?

49. Resolution of this question is central to the appeal because it would also:

1. establish whether the Applicant’s development fulfils the provisions of cl 4.4A of LLEP concerning the circumstances under which the FSR applicable to the Subject Site might be 1.5:1 rather than the FSR of 1:1 as provided under cl 4.4 of LLEP;

2. confirm whether the proposed development‘s FSR, including that related to its proposed fourth storey, is compliant with the applicable FSR development standard;

3. address a key aspect of the contention concerning heritage under cl 5.10 of LLEP, which requires that before granting consent under this clause in respect of a heritage item or heritage conservation area, a consent authority, or the Court on appeal, should consider the effect of the proposed development on the heritage significance of the item or area concerned;

4. address the consistency of the proposed development with the controls applicable to development within the Darling Street Sub Area of the Rozelle Distinctive Neighbourhood (see above at [38(3)(a)(i)]).

50. The Parties further agreed that, reflecting their submissions at [22], the following additional questions required resolution during the hearing:

1. Are the potential heritage impacts of the proposed development acceptable?

2. Are the potential overshadowing impacts of the proposed development acceptable?

3. Are the potential overlooking impacts of the proposed development acceptable?

51. The Court was assisted in its considerations of these questions, and other matters, by the testimony of the following experts:

1. in the field of town planning and urban design:

1. Mr Atalay Bas, town planning and urban design expert, for the Respondent;

2. Mr Benjamen Craig, town planning expert for the Applicant

3. Mr Rohan Dickson, urban design expert, for the Applicant;

2. in the field of heritage:

1. Mr Robert Moore, for the Respondent; and

2. Dr Jennifer Hill, for the Applicant;

3. in the field of landscape architecture:

1. Mr Ian Mackenzie, for the Respondent, and

2. Ms Narelle Sonter, for the Applicant.

4. in the field of traffic engineering:

1. Mr Joe Bertacco, for the Respondent; and

2. Mr Ross Nettle, for the Applicant.

Is the proposed development, including its proposed fourth storey, compatible with the desired future character of the local area?

52. The design of the proposed development has been described in detail above at [9].

53. The Respondent said in opening that, based on the Applicant’s amended plans:

1. the design of the proposed development was acceptable other than in relation to the proposed top (fourth) storey, which it said was inconsistent with the desired future character of the area;

2. the wall height of the proposed development, and thus presentation of the ground level and second storey, was acceptable as it was consistent with the 7.2m wall height control C5 within Part 2.2.5.5(a) of LDCP;

3. the setbacks of the proposed development, as represented in the amended plans, and upon which the Applicant relies, including those of the third storey, were acceptable from both its Darling Street and Cambridge Street perspectives, and in terms of the setback and building separation controls in LDCP (see above at [38(3)(a)]) and the ADG (see above at [41(1)(a)]).

4. the overall design of the first three storeys was acceptable, and these elements of the proposed development were compatible with desired future character of the area;

5. the appearance of the proposed fourth storey from Cambridge Street was acceptable;

6. the appearance of the proposed fourth storey from the Darling Street perspective was the element that gave rise to the Respondent’s submission that the proposed development was incompatible with the desired future character of the area.

54. The planning and urban design experts also agreed with these submissions, and also agreed that it was the appearance of the proposed fourth storey from the Darling Street perspective that gave rise to the differing opinions of the experts in relation to the compatibility, or otherwise, of the proposed development with the desired future character of the area.

55. Based on the above, I conclude that the bulk and scale of the first three storeys (that is the ground, first and second levels) of proposed development are compatible with the desired future character of the area, and, so, at least in respect of Cambridge Street, satisfy the requirements of cl 4.4A(c) of LLEP.

56. As a consequence, I conclude that the question of the proposed development’s compatibility with the desired future character of the area must centre on its compatibility, or otherwise, with the desired future character of the area from the perspective of Darling Street.

57. The Applicant submitted, and I agree, that guidance in resolving this issue is provided by the judgment of former Senior Commissioner Roseth in the matter of Project Venture Developments v Pittwater Council [2005] NSWLEC 191 (hereafter referred to as Project Venture).

58. In that judgment, the former Senior Commissioner noted (at [24]) that in order to test whether a proposed development is compatible with its context, the following two questions should be resolved:

1. are proposal’s physical impacts on surrounding development acceptable?

2. is the proposal’s appearance in harmony with the buildings around it and the character of the street?

59. As noted above, the Parties were satisfied that issues concerning traffic and parking were resolved either by the amended plans and/or the recommendations of the traffic engineers in their joint report (see above at [14]).

60. The Parties further agreed that the remaining contentions concerning the potential physical impacts of the proposed development concerned matters of heritage, overlooking and overshadowing. These matters are addressed below at [89], [99] and [107]. Consequently, I will leave consideration of the first of the above questions from Project Venture until later in this judgment, and after I have considered his second question in relation to whether the proposal’s appearance in harmony with the buildings around it and the character of the street.

Is the proposed development’s appearance in harmony with the buildings around it and the character of the street?

61. As noted above at [18] and [53(4)], the Respondent had submitted, and the experts agreed, that the presentation of the first three storeys of the proposed development were compatible with the desired future character of the area.

62. The Parties, and their experts, also agreed that the proposed fourth storey was acceptable from the Cambridge Street perspective (see above at [53(5)]).

63. Final resolution of this question therefore requires a consideration of the proposed fourth storey element in relation to whether its appearance from Darling Street is in harmony the buildings around it and so whether it is compatible with the character of the street.

64. As noted previously, the fourth floor would contain two 3-bed units and would have setbacks from the boundaries of the Subject Site as provided at [9(4)(c)].

65. The Applicant submitted that the appearance of the fourth storey was acceptable from viewpoints along both Cambridge Street and Darling Street because the fourth storey structure:

1. was recessive;

2. had significant front, side and rear setbacks; and

3. was not a dominant element of the building from the perspective of either street.

66. The Applicant also said that this submission had been confirmed, in its opinion, through the preparation of several animated videos of the proposed development that illustrated the appearance of the building from the perspectives of an observer moving along Cambridge Street and Darling Street. These animations were tendered as evidence at the hearing (Exhibit 3 Appendix D).

67. One of the animated videos illustrated the view to the proposed development as it would be experienced by an observer as he or she moved along Cambridge Street towards Darling Street.

68. While the appearance of the proposed development was not a matter on which the Parties, or their experts, disagreed, I include below a still of the Cambridge Street perspective taken from this animation, for completeness and comparison in relation to Darling Street perspectives discussed later.

69. During the hearing the fourth storey element of the proposed development, from the Cambridge Street perspective, was described by the Applicant, and its planning, urban design and heritage experts, as appearing as a ‘floating plane’ above the main building mass.

70. Having considered the evidence of the experts, and the submissions of the Parties, I accept that the building’s appearance from a Cambridge Street perspective is not dominant, and is certainly not visually intrusive.

71. I also agree that, as submitted by the Parties, if the lower three storeys of the proposed development are compatible with the desired future character of the area, then the proposed fourth storey does not compromise that assessment from the perspective of Cambridge Street. I also agree that the proposed development is compatible with the desired future character of the area from the Cambridge Street perspective.

72. The Parties and their planning and urban design experts agreed that the most prominent view of the proposed fourth storey would be that as perceived by an observer moving westwards along Darling Street, on the footpath on the opposite (southern) side of Darling Street, and towards the Subject Site.

73. The Court had the benefit of both an on-site view of the Subject Site and its surrounds, as well as the Applicant’s second video animation that illustrated the proposed fourth storey’s presentation from viewing angles on Darling Street.

74. A screenshot taken from the animation of an observer’s initial view of the proposed development as he or she moved westwards along Darling Street is provided below.

75. A further screenshot of this Darling Street perspective, taken at a slightly more western position on the Darling Street footpath, is provided below. This still illustrates the fullest extent of the proposed fourth storey element as it would be viewed by an observer on the southern side Darling Street.

76. Finally, the animation also illustrated the view of the proposed fourth storey element as it would be perceived by an observer continuing further westward. The Applicant said that from this perspective the observer’s view of the proposed fourth storey would recede as the observer proceeded westward along Darling Street.

77. A further screenshot representing this receding view of the fourth storey from the perspective of an observer on Darling Street, standing opposite its intersection with Cambridge Street, is provided below.

78. The desired future character of the Darling Street Sub Area, within the Rozelle Commercial Distinctive Neighbourhood, is defined within LDCP through the application of a suite of objectives and controls, the most relevant of which, for the purposes of this appeal, were provided earlier in this judgment at [38(3)(a)(i)].

79. The question of the proposed development’s compatibility with the desired future character of the area from the perspective of Darling Street was the subject of further testimony from the planning and urban design experts, both in their joint report prepared with the heritage and landscape experts, and during the hearing.

80. Mr Craig and Mr Dickson were both of the opinion that the proposed development was compatible with the desired future character of the Darling Street Sub Area and the Rozelle Commercial Distinctive Neighbourhood, in relation to its bulk, form, uses and scale, as, in their opinion, it satisfied the objectives and controls within Parts 2.2.5.5 and 2.2.5.5(a) of LDCP, and so satisfied the requirements of cl 4.4(c) of LLEP.

81. Both Mr Craig and Mr Dickson drew upon the findings of the former Senior Commissioner in Project Venture, and in which he had stated (at [22]) that:

“There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. 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, harmony is harder to achieve.”

82. Mr Dickson said that the proposed development was:

1. consistent with the maintenance of the predominant bulk, scale and siting of buildings compatible with adjoining development and the neighbourhood generally because it reflected the following characteristics identified within the character statement for the area:

1. continuity of the dominant two storey street wall;

2. a tendency of buildings to be three storeys in appearance;

3. the presence of continuous awnings on Darling Street;

4. the presence of an occasional larger building on street corners;

5. a nil setback to Darling Street and Cambridge Street.

2. acceptable in terms of its impacts as it:

1. retained the heritage façade of the existing structure along Darling Street and Cambridge Street;

2. had an acceptable visual bulk on Cambridge Street because:

1. it retained the existing masonry wall at the boundary adjacent to 10 Cambridge Street, and so maintained the existing level of privacy enjoyed by residents of that dwelling;

2. proposed planter boxes around the perimeter of upper levels to increase visual privacy to surrounding properties;

3. the single storey built forms to the north-west of the Subject Site would not be impacted by overshadowing;

4. the proposed development had minimal window openings on its northern side which would minimise potential overlooking impacts.

3. compatible with the desired future character of the area.

83. Mr Craig said that, consistent with control C4 of Part 2.2.5.5 of LDCP, the proposed development maintained the predominant bulk, scale and siting of buildings compatible with adjoining development and the neighbourhood generally because:

1. Part 2.2.5.5 had identified that the existing predominant bulk, scale and siting of buildings to be maintained as:

1. having an established two storey scale, with the inclusion of the occasional larger building; and

2. traditional shop top housing;

2. the proposed development was for shop top housing that would result in an occasional larger building, on a corner lot, consistent with the existing pattern of buildings in the area.

84. Mr Bas, for the Respondent, said that the proposed development was not, in his opinion, consistent with either the desired future character of the area or its existing character because:

1. the proposed four storey building did not provide an appropriate transition to the surrounding residential dwellings adjoining and nearby the Subject Site, which he said were of a single storey nature;

2. the proposed four storey building would not achieve an outcome reflecting the established built form and character of Darling Street, which he said was of an established two storey scale, with the inclusion of the occasional larger building, and increasing to three storeys at key intersections;

3. if the site were to provide for ‘the inclusion of an occasional larger building’, reflecting the existing character description, it would be preferable that this be a two storey structure with a high parapet, or at most a three storey structure at this key intersection.

85. I have considered the submissions of the Parties on this point, and the evidence of the planning and urban design experts presented to me during the hearing, and I have concluded that proposed development, including the proposed fourth storey, is compatible with the desired future character of the area from a Darling Street perspective.

86. I have reached this conclusion in part because I accept, and agree with, the evidence of Mr Dickson, and Mr Craig, as provided above at [82] and [83], that the proposed fourth storey is compatible with the desired future character of the area, for the reasons they provided, and also, because in my assessment:

1. the presentation of the proposed development to Darling Street is similar to the presentation to Cambridge Street in that it is dominated by the first (lower) three storeys of the proposed development;

2. the principal element contributing to the proposed development’s bulk and scale derives from its second and, to a greater extent, it’s third storeys, and not the recessive fourth storey;

3. the Respondent, and the planning and urban design experts, all agreed that the lower three storey built form of the proposed development is acceptable, and is compatible with the desired future character of the area;

4. the proposed fourth storey is, in my assessment, and as submitted by the Applicant, supported by its experts Mr Dickson and Mr Craig, recessive from the perspective of Darling Street, and sufficiently so that, in comparison with the dominant three storey lower portion of the built form, it is harmonious with surrounding developments.

87. As a consequence of my conclusion at [85], I am satisfied that the response to the second of the former Senior Commissioner’s questions in Project Venture is that the appearance of the proposed development from both Darling Street and Cambridge Street is in harmony with the buildings around it, and with the character of the street.

88. Having established the response to the second of the questions in Project Venture, I will now return to the first of the questions, concerning the physical impacts of the proposed development, which as identified at [22], go to matters of potential impacts in the areas of heritage, overlooking and overshadowing.

Are the potential heritage impacts of the proposed development acceptable?

89. The provisions of cl 5.10 of LLEP were provided above at [36(7)], and which require, inter alia, that the consent authority, or the Court on Appeal, must consider the effect of the proposed development on the heritage significance of the item or area concerned before granting consent under this clause in respect of a heritage item or heritage conservation area.

90. As noted above at [5], the existing building on the Subject Site is a listed heritage item (Item I748) under the provisions of cl 5.10 of LLEP.

91. A Heritage Impact Statement for the proposed development, prepared by Architectural Projects Pty Limited, was tendered as evidence at the hearing. This included a statement of significance for the existing building on the Subject Site.

92. The potential heritage impacts of the proposed development, in relation to the requirements of cl 5.10 of LLEP, were the subject of a joint expert report from Mr Robert Moore (for the Respondent) and Ms Jennifer Hill (for the Applicant), tendered as evidence, and which was complemented by oral testimony from these experts during the hearing.

93. Within their written and oral testimony, Mr Moore and Miss Hill agreed that:

1. the heritage significance of the existing heritage item resided primarily in its facades and shopfronts;

2. the integrity of the heritage items shopfronts and facades including the parapet would be retained under the proposed development;

3. the architectural treatment of the first and second storeys, as represented within the amended plans, was now appropriate;

4. the horizontal form of the proposed addition (with the exception of the north-western end) had been appropriately articulated within the amended architectural plans, in terms of the retained envelope of the building, and its relationship with its primary street frontages;

5. any inconsistencies between the heritage impact statement and the proposed development had been resolved;

6. the demolition of the complete interior and roof structure of the heritage item can be supported in view of the entirely altered condition of the fabric in the low significance that must be consequently accorded to it.

94. The heritage experts were unable to agree on two points:

1. whether the proposed fourth storey of the proposed development was acceptable in terms of its potential heritage impacts; and

2. whether the treatment of the proposed developments built form at its rear, and adjacent to number 10 Cambridge Street, was acceptable.

95. Mr Moore said that in his opinion:

1. while the scale and bulk of the first and second storeys of the proposed development were acceptable, the proposed topmost level, that is the proposed fourth storey, exceeded a comfortable relationship with both the retained facades and the established context in which the building is appreciated;

2. the proposed fourth storey would result in a building that would be unacceptably high and dominant in the locality, and he said this upper storey should be removed from the proposed development;

3. the form of the north western end of the building and its proximity to the neighbouring terrace at 10 Cambridge Street was problematic in that the ‘scalar change’ of the proposed built form to the smaller scale houses to its north-west had not been successfully managed.

96. Miss Hill said that:

1. the scale of the proposed development is defined by the form of its lower storeys, and the upper fourth storey, as proposed, would be setback such that it would appear as a ‘floating plane’ above the more substantial lower floors. She added that in her opinion, this upper storey did not contribute to the overall bulk and scale of the building when viewed from either Cambridge or Darling Streets;

2. the proposed fourth storey would not diminish the proportions of the building in relation to its heritage values;

3. the articulation of the proposed development, perceived as four separate elements, including a horizontal addition at the mid storeys set back from the ground floor, together with the uppermost fourth storey, which was further setback, provided an appropriate response to the smaller scale terrace at 10 Cambridge Street;

4. it would be unreasonable to expect a similar scale of development between the terrace at 10 Cambridge Street and a building on the Subject Site given the relative areas of the sites, that being 105m² on the 10 Cambridge Street lot and 1325 m² on the Subject Site;

5. the setback of the proposed development from 10 Cambridge Street is acceptable.

97. I have considered the evidence of the heritage experts as provided within the joint report and during oral testimony at the hearing, and find that I agree with the evidence of Ms Hill that:

1. the proposed fourth storey would not diminish the proportions of the building in relation to its heritage values as perceived from Darling Street. I base this conclusion on the following points:

1. my conclusion already stated that the proposed fourth storey is in harmony with the buildings in the Darling Street Sub Area (see above at [87]);

2. I agree that the proposed fourth storey is recessive in nature and would not have a significant visual impact compared to the much more dominant impact of the proposed lower three storeys;

3. Mr Moore’s agreement that the levels of the building below the fourth storey were acceptable in terms of any impact on the heritage values of the current heritage structure on the Subject Site;

4. my assessment that if these lower levels are acceptable then I do not view the addition of the recessive, and less dominant, proposed fourth storey as having a significant impact on the heritage values of the existing structure;

2. the proposed fourth story would not be perceptible, other than as a floating plane from most of Cambridge Street, including from the perspective of 10 Cambridge Street, as a consequence of its recessive design;

3. the proposed design of the rear element of the proposed development is acceptable in relation to the property at 10 Cambridge Street as a consequence of its articulations, along with its varied and increasing setbacks with increasing the height, and the fact that the proposed development is unlikely to be viewed from the side and rear of 10 Cambridge Street (see also below at [104]).

98. As a consequence of my findings at [97], I conclude that the potential heritage impacts of the proposed development are acceptable, and that the design of the proposed development, incorporating retention of the principal heritage elements of the existing building, is an appropriate response which respects the heritage values of that building.

Are the potential overlooking impacts of the proposed development acceptable?

99. The proposed development’s potential overlooking impacts were the subject of testimony from the expert planners and urban designers, both in their joint report and in oral testimony during the hearing.

100. Within their joint report, the experts had agreed that potential overlooking impacts to neighbouring properties on Oxford Street had been satisfactorily addressed based on the design of the proposed development, which included a non-trafficable landscaped terrace adjacent to properties in Oxford Street. They noted that this terrace, and the landscaping area, had reduced the potential for overlooking from living room windows in the proposed development to the neighbouring properties in Oxford Street. It was further agreed that the planter beds and landscaping within the terrace on the north-west elevation of the proposed development provided sufficient setbacks to reduce any potential overlooking issues from the third storey of the proposed development.

101. The experts further agreed that the contention in relation to the proposed terrace of unit 302 had been satisfactorily addressed by the Applicant, subject to a condition of consent be included that would require the submission of a landscape maintenance schedule for approval by Council prior to the issue of an occupation certificate for the proposed development.

102. At the hearing, the Respondent’s expert planner, Mr Bas, raised concerns during his oral testimony that the design of the units at the rear of the proposed development, notably the unit referred to as unit 207, may give rise to potential overlooking impacts to the adjoining properties at 10 and 12 Cambridge Street.

103. In response to this concern, the Applicant proposed, and the Respondent accepted, that the design of the rear balconies would be amended to ensure that any such potential overlooking impacts were mitigated, including, if required, the installation of blades to screen the view to the adjoining properties.

104. As a consequence of the proposal above at [103], the Applicant prepared amended plans to provide for the installation of privacy treatments to the rear balconies of unit 207 that restricted any potential overlooking into the rear yard areas of 10 and 12 Cambridge Street. These plans also included an illustration to confirm the effectiveness of the proposed privacy treatments in relation to restricting views from unit 207, as well as unit 107, towards Cambridge Street.

105. The Applicant sought leave to rely on these amended plans, and leave was granted without objection.

106. On the basis of these further amended plans, the Parties agreed that the contention relating to the potential overlooking impacts of the proposed development were satisfactorily resolved. I accept the submissions of the Parties, and the evidence of their experts, in this regard.

Are the potential overshadowing impacts of the proposed development acceptable?

107. The potential overshadowing impacts of the proposed development on adjoining properties was the subject of expert testimony of the planning and urban design experts at the hearing and in their joint report.

108. The Parties, and their experts, agreed that the principal potential overshadowing impacts from the proposed development arose in relation to the adjoin properties at 1A and 3 Oxford Street to the south west of the Subject Site. They further agreed that:

1. those potential impacts were the product of the second and third storeys of the proposed development;

2. the proposed fourth storey did not give rise to any potential overshadowing impacts to neighbouring properties;

3. the potential overshadowing impacts of the proposed development were minor in their extent and were not a reason to require modification to the design of the building;

4. the potential overshadowing impacts were not a reason to refuse the Applicant’s development application.

109. Having considered the submissions of the Parties, and the evidence of the experts, I agree that the potential overshadowing impacts of the proposed development are minor, and not a basis for refusal of the Applicant’s development proposal.

110. I also conclude that, on the basis of this finding and those at [98] and [106], the response to the second question of the former Senior Commissioner in Project Venture is that the proposed development’s physical impacts on surrounding development are acceptable.

Conclusions

111. Based on my findings that the physical impacts of the proposed development on surrounding development are acceptable (see above at [110]), and that the appearance of the proposed development from both Darling Street and Cambridge Street is in harmony with the buildings around it, and with the character of the street (see above at [87]), I am satisfied that:

1. the proposed development is compatible with the desired future character of the area;

2. the proposed development fulfils the provisions of cl 4.4A(3)(c) of LLEP concerning compatibility with the desired future character of the area;

3. as agreed by the Parties and their experts, the proposed development fulfils the provisions of cll 4.4A(3)(a) and 4.4A(3)(b) of LLEP;

4. the floor space ratio applicable to the proposed development on the Subject Site is 1.5:1.

112. As a consequence of my finding at [111(4)], I conclude that:

1. the Applicant’s proposed development, which has a FSR of 1.48:1, is compliant with the FSR development standard applicable to the Subject Site; and

2. there is no requirement for consideration of a written request from the Applicant to vary the FSR standard under cl 4.6 of LLEP.

113. I also conclude that:

1. based on my findings above at [98], the proposed development is consistent with the provisions of cl 5.10 of LLEP concerning heritage conservation;

2. the potential physical impacts of the proposed development have been satisfactorily resolved through the amended plans and proposed draft conditions of consent;

3. there are no potential impacts that would form as basis for refusal of the Applicant’s development application;

4. the proposed development complies with the relevant controls within LDCP, particularly those in relation to height, setbacks, and development within the Darling Street Sub Area of the Rozelle Commercial Distinct Neighbourhood;

5. the proposed development complies with all relevant the provisions of SEPP65 and the ADG, including the provisions of cl 28 of SEPP65, concerning the determination of development applications to which SEPP65 applies, and Schedule 1 of the SEPP, which I have considered, and in relation to which I am satisfied, including as they relate to the character of the proposed development under Principle 2 of Schedule 1.

114. I am, therefore, satisfied that:

1. the proposed development is in the public interest;

2. the Applicant’s Development Application DA D/2017/491 for demolition works and construction of a four storey shop top housing development with basement parking should be approved.

115. During the hearing, and in submissions received from local residents, concern was expressed that approval of the proposed development would establish an undesirable precedent for development in the local area, particularly in relation to the proposed fourth storey element.

116. Having considered this submission, I have concluded that approval of the proposed development is unlikely to establish such a precedent, because the proposed fourth storey in this appeal:

1. sits atop a unique, and large, heritage listed structure, on a corner location, which provides an unusual opportunity within the Darling St Sub Area to achieve a fourth storey using a recessive form;

2. responds to its specific circumstance with sensitivity by incorporating significant setbacks to minimise any visual impact on the retained heritage structure;

3. is designed such that it is both recessive, and is not a dominant element in the presentation of the proposed development, as perceived by an observer from either the Cambridge Street or Darling Street perspectives;

4. forms only a small element (less than 15%) of the overall FSR attributable to the proposed development;

5. sits above a much more dominant three storey structure that the Respondent, and the experts in this appeal, accept is:

1. appropriate for the Subject Site; and

2. compatible with the desired future character of the area.

117. At the conclusion of the hearing I directed the parties to file with the Court agreed conditions of consent to reflect all agreements reached between the Parties on the basis of expert evidence, along with a consolidated set out plans for the proposed development, including plans for which leave had been granted during the hearing. These documents, along with a schedule of amendments, were filed with the Court on 19 March 2019.

118. The orders below are consistent with the content of those documents, and of the final plans, reflecting the outcomes of the hearing.

Orders

119. The orders of the Court are:

1. The Applicant is granted leave to rely on amended plans, including amended landscape plans;

2. The Applicant is to pay the Respondent’s costs that are thrown away as a result of amending the development application, as agreed or assessed under s 8.15 of the Environmental Planning and Assessment Act 1979;

3. The appeal is upheld;

4. The Applicant’s development application DA D/2017/491, for demolition works and construction of a four storey shop top housing development with basement parking for 23 cars, at 731-735 Darling Street, Rozelle, is determined by the grant of consent, subject to the conditions attached hereto at Annexure ‘A’;

5. The exhibits are returned, except Exhibits A, B and 1.

……………………….

Michael Chilcott

Commissioner of the Court

Annexure A 

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Decision last updated: 18 April 2019