Kanobay Pty Ltd v Sydney City Council - [2004] NSWLEC 493

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Kanobay Pty Ltd v Sydney City Council [2004] NSWLEC 493

PARTIES:
APPLICANT
Kanobay Pty Ltd
RESPONDENT
Sydney City Council

FILE NUMBER(S): 10327 of 2003

CORAM: Nott C

KEY ISSUES: Development Application :- Proposed demolition of a two-level warehouse and the erection of a four-level residential aparatment building containing 20 units above a semi-basement carpark - soil contamination - heritage considerations re demolition of existing building and design form and scale of proposed building in conservation area - overshadowing - amenity of future occupants

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97(1)

CASES CITED:

DATES OF HEARING: 15-17 Ootober 2003, 24 June 2004 (mention), 29-30 June 2004

DATE OF JUDGMENT: 09/15/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mrs M-L Taylor, solictor
SOLICITORS
Norman Waterhouse
RESPONDENT
Mr D T Miller, barrister
SOLICITORS
PricewaterhouseCoopers Legal

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10327 of 2003

Nott C

15 September 2004

Kanobay Pty Ltd
Applicant
v
Sydney City Council
Respondent

Judgment

1. Proposal

1 . The project architect Mr Ian Moore succinctly described the proposed development as the demolition of an existing two-level warehouse and the erection of a four-level residential apartment building containing 20 units above a semi-basement carpark containing 14 car spaces at 12-18 Meagher Street, Chippendale. The plans for the proposed development are contained in exhibit A.

2 . According to Professor Weirick, the proposed building is reminiscent of the ‘machine aesthetic’ of the 1920s ‘International Style’, typified by works such as the apartment block of Weissenhofsiedlung, Stuttgart, designed by Mies van der Rohe in 1927; or the Jardinette Apartments, Los Angeles, designed by Richard J Neutra in 1926-1927 (see illustrations at figures 3 and 4 of exhibit 8).

2. Brief history, council’s consideration and determination

3 . On 30 August 2002 the present development application and accompanying documents, including a statement of environmental effects by City Plan Services, was lodged with the South Sydney Council. (Subsequently there was an amalgamation of council areas and the present respondent, Sydney City Council, became the consent authority.) The proposal was advertised and there were letters of objection and a petition from local residents against the proposal.

Existing Conditions
The existing building is a two to three storey warehouse building, essentially two storeys to the street frontages, with two mezzanine levels which are just visible as gabled roof forms projecting above the parapet of the existing building. All external windows have been replaced with aluminium-framed windows. The applicant’s Statement of Heritage Impact states that the interior of the building has been extensively altered, and that the exterior has been altered by the insertion of new windows and doors.
The existing building fronts Meagher and Balfour Streets and Teggs Lane, and is built to the street alignments. The façade is modulated with bays which feature arched windows or blind arches to both levels of the street frontage.
The adjacent row of two-storey Federation terraces at Nos 2-10 Meagher Street were built by 1908. To the east and north are recent large buildings. The building is in the vicinity of the Strickland Buildings, a heritage item.
The building is within the Chippendale Conservation Area. …

History of the site
Part of a 95 acre land grant to William Chippendale in 1815, the site was developed for terrace houses by 1850. These buildings were demolished in the 1880s, and the site was still vacant in 1902. In 1909 W.H. Peters, Sydney coachbuilder, who purchased the site in 1907, lodged an application to erect a new building on the site. This building was a two-storey brick workshop erected at 12-14 Meagher Street. Another building was erected circa 1914 at Nos 16-18, employing similar design features to its neighbour so that externally the two buildings appear as one building with a continuous street façade. [Other evidence in the appeal suggests that it was the corner building at Nos 16-18 that was erected first (c. 1907), followed by attached building at Nos 12-14 (c. 1909).] The premises at 12-18 Meagher St were occupied by Austral Chair Company from c. 1914 to 1921. The existing double-pitched roofs were added in 1921. The site continued to be owned by W.H. Peters until 1951, leased to various tenants from 1921. The buildings continued in industrial, manufacturing or wholesale uses until the present. …

Comment
Demolition
The existing building does appear to make only a neutral contribution to the streetscape of the conservation area, due to extensive alterations to the exterior. It is therefore considered that demolition of the building is acceptable.
Conditions of consent should require a photographic recording of the existing building and an archaeological assessment report to be undertaken for the site, to be submitted prior to the release of the construction certificate.

Proposed new building
The proposed building is considered to be excessive in height and bulk for the location, particularly in relation to the two-storey terraces adjacent to the west. The proposed building is both substantially larger than the existing building, and substantially in excess of Council’s controls. It is worth noting that part of the height of the proposed building is the carpark level which projects out of the ground. The proposed building’s façades are relatively uniform, have a horizontal emphasis, and fail to visually break up the bulk of the building.

It is considered that:

– the carparking level should be wholly below ground level;

– the building should not exceed the height of the existing building at the street frontages (note: there is opportunity for an additional, set-back floor)

– the design of the building to the street façades should pay careful attention to context, should aim to visually break up the bulk of the building, introduce vertical elements, and aim to address both the main street frontages of the building. As this is a corner site, it is also suggested that the corner be discretely addressed – eg. through a corner splay. Details of the design, such as glazed balustrades to Balfour Street elevation, glazed walls to Balfour Street elevation, are generally considered unsympathetic to the conservation area context.

Recommendation

That the proposal in its current form is unacceptable within the conservation area context for the following reasons:

– the proposal is excessive in height and bulk

– the proposal fails to respond to the guidelines for New Development-Infill contained in 1998 South Sydney Heritage Conservation DCP.

– the proposal fails to respond to the guidelines for Large Scale Infill buildings on the Chippendale Development Control Plan.

It is recommended that the applicants be asked to submit amended plans redesigning the proposal to:

– reduce height and bulk as outlined above;

– achieve a below ground carpark;

– respond to the comments above and the DCP guidelines outlined above in relation to the proposed building’s detailed design.

5 . By August 2003 Sydney City Council had become the consent authority. Unless otherwise stated, any reference to “the council” hereafter is to Sydney City Council. In a detailed report to the council dated 5 September 2003, the council’s specialist planner Mr A Robb recommended refusal of the application. It appears that the council had deferred consideration to enable councillors to inspect the site.

(1) The proposed development is not consistent with the design quality principles provided at Part 2 of State Environmental Planning Policy No. 65—Design Quality of Residential Flat Buildings.

(2) The development application does not fulfil the requirements of State Environmental Planning Policy No. 55—Remediation of Land.

(3) The proposed development is inconsistent with the Built Environment Design Principles set out at Clause 28 of South Sydney Local Environmental Plan 1998

.

(4) The proposed development will have an adverse impact on the visual and aesthetic qualities of “Strickland House” and does not comply with Clause 23 of South Sydney Local Environmental Plan 1998.

(5) The proposed development fails to comply with Part E of South Sydney Development Control Plan 1997—Height, Floor Space Ratio, Setbacks and the Form and Appearance Controls.

(6) The proposed development fails to comply with South Sydney DCP No. 11—Transport Guidelines for Development 1996.

(7) The proposed development fails to comply with the minimum floor to ceiling height as required under Section 6 of Central Sydney Development Control Plan 1996—Residential Amenity.

(8) The proposal is not in the public interest.

3. Issues

7 . At the hearing, the issues included whether the proposed building satisfies the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Flat Development ( SEPP 65 ); and whether the building would be suitable in its context in the Chippendale conservation area, having regard to South Sydney (Heritage and Conservation) Development Control Plan 1998 Amendment No 1 (Chippendale and the Adaptive Reuse of Warehouses and Former Industrial Buildings) ( conservation DCP ). The council also contended that the existing warehouse building should not be demolished but should be adaptively reused. The issues are more fully set out in the statement of issues dated 21 June 2003 and in the particulars (ex 2 tab 21), and will be considered below. A further issue that arose during the hearing related to overshadowing of buildings on the southern side of Meagher Street that are contributory items in the conservation area. Two of the issues mentioned below were resolved by agreement between the parties.

4. Soil contamination

8 . One of the issues that was resolved by an adjournment to obtain further evidence related to State Environmental Planning Policy No 55—Remediation of Land. Following the adjournment, a detailed Soil Contamination Assessment by Mr W Newell of Earth Air Water Consulting and Monitoring Pty Ltd dated 14 December 2003 was prepared, filed and served. In the light of this report and an earlier report of Mr Newell dated 9 October 2003, the parties agreed that there was now no issue as to soil contamination and that a condition of consent could address the matter.

5. Carparking and traffic issue

9 . The issue of traffic using the rear lane was not pressed. Messrs Morse and Robb agreed that vehicle manoeuvring would be acceptable. Although some residents objected that 14 car spaces were insufficient for the proposed 20 units, the council did not press this as an issue, and I express no opinion on this matter.

6. Evidence

12 . Besides the written objections and petition, Ms N Langeheim of 6 Meagher Street and Ms Brokman of 12 Bartley Street gave oral evidence against the proposal.

7. Surrounding and nearby development

13 . Proceeding north from the subject site and looking at the western side of Balfour Street, Teggs Lane (which is 6.5 m wide) separates the site from the TCG building at No 53, and on the northern side of that building are three terrace houses, then Little Queen Street, after which is a three-storey brick warehouse (more recently used as an office building).

14 . On the eastern side of Balfour Street immediately opposite the subject site, there is the City Gold building at 50-52 Balfour Street (it also has an address and frontage to Meagher Street), which is a four-storey, cement-rendered, box-like building, and which is listed in the conservation DCP as a detracting building.

15 . On the northern side of Meagher Street to the east of the City Gold building there are three-storey warehouse-type buildings and several two-storey buildings. The converted warehouse at 54 Meagher Street has a front façade three storeys high, and there is a fourth storey that is set back from the street with a roof garden in front of it.

16 . On the southern side of Meagher Street, the Pickfords building (seen in the colour photo, exhibit P) is a three-storey former warehouse-type building facing north in Meagher Street in the narrow block between Chippen Street and Dale Ave.

17 . The Strickland Building is a heritage item diagonally opposite the subject site on the corner of Meagher and Balfour Streets. There are four businesses, including the Harrington Street Gallery, on the ground floor of the corner section of this building and two residential floors above. However, turning the corner and proceeding south in Balfour Street, the Strickland Building extends southward a full block down to Cleveland Street, and the building also has a frontage to Dale Ave on the east. Viewed from Balfour Street, the Strickland Building is probably the most attractive building in the immediate locality of the subject site. In fact, the Strickland Building appears to comprise a number of different buildings because of the variation in articulation and setbacks from the street. Apart from the corner section of the Strickland Building, the rest of the building extending down to Cleveland Street would appear to have residential units on each of the three levels. On the Balfour Street side of the building where the natural ground is lower, the ground-floor level is raised on a sandstone base. In front of each of the articulated, three-storey residential blocks of the Strickland Building facing Balfour Street, space is available on the Strickland site itself for soft landscaping each side of steps leading up to each of the entrances. Excluding the corner section of the Strickland Building, the front façades of the three-storey residential blocks of the Strickland Building have varying setbacks from the alignment of Balfour Street, some setbacks being about 5 m to 6 m, where there is ample area for soft landscaping. Illustrations of the Strickland Building are shown at figures 19, 26 and 27 of Professor Weirick’s report (ex 8).

18 . Opposite the Strickland Building on the corner of Balfour and Bartley Streets is a park known as Strickland Park, which has play equipment for children and seats. Bartley Street also has a wide footpath with seating and gardens in the footpath area. The predominant scale of buildings on both sides of Bartley Street is that of two-storey terrace houses. On my view of the locality, I observed that there is a plaque in Strickland Park that reads: “The Strickland Buildings were the first council-built public housing in Australia . The buildings were constructed in stages from 1912 to 1914 and represent an excellent example of Federation Arts and Crafts style.”

19 . At the time of my inspection, the two-storey building on the corner of Balfour and Meagher Streets (No. 15 Meagher Street) displayed a sign indicating that the ground floor was a Thai-food restaurant, and there appeared to be a residence above it. On the western side of this building, facing the subject site, are three two-storey Victorian terraces at 13A, 13 and 11A, which have largely kept their original form and style. This corner property and the adjoining three terraces are contributory buildings under the conservation DCP. In accordance with the height map of DCP 1997, any new development on these four properties facing the subject site would be limited to a height of 6 m. At 11 Meagher Street there is a blue-painted three-storey building now containing residential units.

20 . Proceeding further west in Meagher Street on the southern side, there is a four-storey former hotel, now used for residential purposes and also containing some businesses. The building extends down to McAlister Lane. The ground floor of this building is elevated over a carparking level. It is an unsightly brown-brick building with metal-foil sunshields on its façade. It is listed in the conservation DCP as a detracting building. Still on the southern side of Meagher Street, between McAlister Lane and Abercrombie Street, is a two-storey contributory building.

21 . Commencing again at the subject site on the northern side of Meagher Street and proceeding west, there are five two-storey terrace houses at No. 10 (next door to the subject site) and Nos 8, 6, 4 and 2. The setback of these terraces from the street is generally about 500 mm. These terraces are listed as contributory items under the conservation DCP. The height limit for these terraces under DCP 1997 is 6 m, the same as the height limit for the shop and three terraces on the opposite side of Meagher Street, referred to above. Viewed from Meagher Street, the pitched roof over each of these five terraces slopes up to a ridge that is set back 4.5 m from the front parapet of the existing building on the subject site. The gutter of the closest terrace at No 10 is about 1.5 m below the top of the existing building on the subject site.

22 . To the west of Nos 2-10 Meagher Street is a two-storey building on the corner of Abercrombie Street with a shop on the ground floor.

23 . These and other buildings in the conservation area are shown in the many photos tendered in evidence.

8. Planning controls

SEPP 65

24. As mentioned above, the proposed development is affected by SEPP 65, which came into force on 26 July 2002. Having regard to the date at which the development application was lodged (30 August 2002), the provisions of SEPP 65 as in force immediately prior to Amendment No 1 (made on 20 December 2002) apply to the subject development application and the subsequent amendments do not apply (cl 32 of SEPP 65). This means that the relevant publication to which regard must be had under cl 30(2) is Better Urban Living : Guidelines for Urban Housing in NSW and not the newer Residential Flat Design Code. In relation to ceiling heights, which may have an impact on access to natural light and ventilation, see pp 51-52 of the Guidelines ; the position is strengthened and clarified by the subsequent Code.

The practice direction relating to joint reports requires that the reasons for any disagreement be given. Unfortunately, the town planners did not give reasons for their disagreement in the joint statement, and the differences between them have to be found in other evidence.

26 . The fact that a NatHERS certificate has been obtained for the proposed building is not conclusive of whether the proposed building is of good design. Having regard to the principle 7 (amenity) of SEPP 65, it seems to me that the amenity of future occupants of at least half the units would be appropriately optimised if there were better access to sunlight (or daylight) and to natural ventilation, which could be facilitated by having higher ceilings than 2. 4 m. In expressing this opinion I do not overlook the fact that the proposed ceilings have recessed lights and no protruding bulkheads.

9. South Sydney Local Environmental Plan 1998

27 . The subject site is zoned mixed uses (zone No. 10) under South Sydney Local Environmental Plan 1998 ( LEP 1998 ).

28

Built environment design principles and masterplans

(1) The Council, in determining an application for consent to the carrying out of any development on land to which this plan applies, must take into consideration whether the development:

(a) has been designed to reinforce and protect the local topography and setting, and

(b) reinforces and enhances the streetscape and character of the locality, and

(c) is compatible with the scale and design of neighbouring development, and

(d) has been designed with adequate provision for the intended occupants, and those in the vicinity of the site of the proposed development, in terms of:

(i) privacy, and

(ii) access to sunlight, and

(e) has been designed so as to be energy efficient in terms of natural:

(i) lighting, and

(ii) ventilation, and

(iii) heating and cooling, and

(f) establishes and enhances the public domain, and

(g) has been designed so as to preserve predominant view lines and vistas enjoyed from parks, reserves, roadways, footpaths and other areas of the public domain, and

(h) encourages complementary land uses and activities.

29 . Particularly relevant are pars (b), (c) and (d) of clause 28(1) of the LEP. Written objections (in the letters or by way of a petition) were received by the council from neighbours in the terraces adjoining the western boundary of the subject site and from residents of the terraces on the opposite side of Meagher Street. The adjoining neighbours to the west were concerned, among other things, with the height, scale and bulk of the proposed building. Notwithstanding the expert evidence presented for the applicant from Messrs Davies, Howells and Moore, it seems to me that there would be a certain incompatibility between the proposed development and the two-storey terraces and shops in Meagher Street between Balfour and Abercrombie Streets. I am of the opinion that the compatibility in scale of the proposed building with the buildings to north and east of the subject site is not sufficient by itself to warrant the granting of consent. I also note that the councillors gave as one of their reasons for refusing the development application that the proposed building is inconsistent with the design principles of cl 28 (see par 6(3) above).

30 . The relationship of the existing building to the terraces on the west is seen in figure 42 of exhibit 8 and in the photo at p 5 of exhibit 5. The proposed building in relation to the terraces is seen in the southern elevation of the development application plans (ex A).

31 . The subject site is in the Chippendale Conservation Area, listed as area CA12 in schedule 2A of LEP 1998. Moreover, on the diagonally opposite corner to the subject site is a heritage item, namely Strickland Building at 56-60 Balfour Street. Schedule 2 of LEP 1998 describes this building as a “three-storey Federation Arts and Crafts style residential flat building, c 1914”.

22 Heritage aims

The consent authority must not grant consent to the carrying out of development on the site of a heritage item, or within a heritage conservation area or heritage streetscape area, unless it is of the opinion that the proposal is consistent with the following aims and objectives:

(a) to conserve the environmental heritage of the land to which this plan applies, and

(b) to integrate heritage conservation into the planning and development control processes, and

(c) to investigate and record sites which have archaeological potential, and

(d) to provide for public involvement in matters relating to the conservation of environmental heritage, and

(e) to ensure that any development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of heritage items, of heritage conservation areas and their setting, and of streetscapes within heritage streetscape areas and their setting, and

(f) to ensure that any development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of distinctive streetscapes, landscapes and architectural styles which define the character of heritage conservation areas or streetscapes within heritage streetscape areas, and

(g) to enable the adaptation of existing non-residential buildings or works of heritage significance in a manner which is compatible and sympathetic with the fabric and character of the building or works and the use and fabric of neighbouring land and buildings, and

(h) to encourage the restoration or reconstruction of buildings or works which are heritage items or buildings and works that contribute to the character of heritage conservation areas or streetscapes within heritage streetscape areas, and

(i) to require, when considered necessary, the consideration of a statement of heritage impact or a conservation management plan before consent is granted for development relating to a heritage item, or development within a heritage conservation area or a heritage streetscape area, or development relating to a building older than fifty years, and

(j) to ensure the sympathetic use of sites containing buildings or façades of historic or streetscape importance which contribute to the character of the locality.

33 . In architectural style and form, it seems to me that the proposed building is not consistent with pars (e) and (f) of clause 22 the LEP, in that the development would not be sympathetic to the heritage significance of the heritage item (Strickland House). In my opinion the proposed building would also not be sympathetic to the architectural styles that define the character of the contributory buildings of the conservation area. And see par 39 below.

23A

Protection of heritage conservation areas and heritage streetscapes

(1) A person must not…demolish or alter a building or work within a heritage conservation area…or erect a building…within any such are…except with the consent of the consent authority.

(2) The consent authority must not grant consent to a development application required by subclause (1), being an application to erect a new building or to alter an existing building, unless it has made an assessment of:

(a) the pitch and form of the roof, and

(b) the style, size, proportion and position of the openings for windows and doors, and

(c) whether the colour, texture, style, size and type of finish of materials to be used on the exterior of the building are compatible with the materials used in the existing buildings in the heritage conservation area or heritage streetscape area in which the building is situated, and

(d) the impact on the landscape.

(3) The consent authority may decline to grant a development application required by this clause until it has considered a statement of heritage impact or a conservation management plan, so as to enable it to fully consider the heritage significance of the heritage conservation area or streetscape within the heritage streetscape area and the impact of the proposed development on the significance of the heritage conservation area or streetscape.

24 Development in the vicinity of heritage items, heritage conservation areas…
The consent authority must not grant consent to development on land in the vicinity of a heritage item, a heritage conservation area, a heritage streetscape area, an archaeological site or a potential archaeological site unless it has considered an assessment of the impact the proposed development will have on the heritage significance, curtilage and setting of the heritage item, on the heritage significance of buildings within the heritage conservation area, or on the heritage significance of the streetscape within the heritage streetscape area or of the actual or potential archaeological site, as well as the impact of the development on any significant views to or from the heritage item, heritage conservation area or streetscape.

10. South Sydney DCP 1997: Urban Design

35 . The South Sydney Development Control Plan 1997: Urban Design ( DCP 1997 ) provides quite detailed guidelines to give effect to the LEP 1998. Some of the relevant provisions of DCP 1997 are mentioned in the council's reasons for refusal (par 7 ).

36 . The proposed development does not comply with the 12 m height of DCP 1997. "Height" is defined to mean: “…the vertical distance expressed in metres between a point on the ceiling of the topmost habitable floor and the natural ground level immediately below that point but does not include an attic elsewhere defined.” The height of the proposed building towards its western end, which abuts the adjoining two-storey terraces, is 13.3 m. In contrast, the parapet of the existing building on the subject of site is approximately 8.4 m above the footpath level. Although it is not regulated by the DCP, the overall height of the proposed building to the top of the tall stairwell wall (which is flush with Meagher Street) is 16.6 m above the footpath level.

37 . A landscaped area under DCP 1997 of 224 sq m is needed. However, as the proposed building has a nil setback to each of its four boundaries, there is no opportunity for ground-level landscaping on the site. Instead, the applicant has proposed a large partly-covered outdoor area on the roof, which to some extent is a substitute for the lack of a landscaped area. Trees are proposed to be retained or planted in the footpaths adjoining the building. In the context of the subject locality, it seems to me that some departure from the landscaped area requirements of the DCP could be allowed, because the overwhelming number of properties in the locality do not have landscaping on their sites. The Strickland building site is an exception. Nevertheless, in my opinion the design of any proposed building on the subject site should desirably take into account that there is a small setback of about 700 mm to the main parts of the adjoining terraces to the west of the subject site, and that the gutter of the immediately adjoining terrace is about 800 mm below the parapet of the existing building on the subject site. The windows of the proposed building along Meagher Street are not recessed or set back from the street alignment.

11. Conservation DCP

5.3 Chippendale Conservation Area
5.3.1 Statement of Significance
Chippendale Conservation Area has historic values for its ability to demonstrate the expansion of Sydney into the inner suburbs in order to provide employment and associated working class housing. It is important for its association with 19th century industries such as the Kent Brewery, Brisbane Distillery and CSR Refinery, and continued industrial expansion of the city through the early 20th century insertions. The area strongly reflects the characteristics of a working class suburb that was built around local industries over time. This is evidenced by working class housing representative of the living standards of the Colonial, Victorian and Federation periods and the number of public buildings, churches and hotels that date from as early as the mid 19th century providing support for the local community.
The area is representative of early attempts at city remodelling and planning within Sydney. It is significant for the extent of land resumption that occurred in the early twentieth century which increased the dominance of industry in the area. It also contains a building of particular importance to this phase, Strickland House. Erected in 1914 it was the first public housing project in Sydney and the prototype for low income/workers housing that is representative of government social policies of the early twentieth century…

5.3.2 Character of the Conservation Area
…The results of early twentieth century land resumptions and industrial expansion are best illustrated on the eastern side of Abercrombie Street. The Strickland Buildings are the most outstanding surviving evidence of the Sydney City Council’s engagement in town planning, workers housing and slum clearance, an activity that reshaped entire blocks of the inner city of Sydney. Warehouse and factories dating from 1900s to the 1930s can be found throughout the area, however are most prominent around Myrtle and Buckland Streets and the area to the eastern side of Abercrombie Street (see figure 5.3.2). The bold cubic form of these buildings has come to characterise much of the physical image of Chippendale today.…

5.3.3 New Development - Existing buildings

(1) General
New work to existing buildings in the Chippendale area should be carefully considered in relation to the impact on the area’s significance. Generally, alterations and additions should not dramatically alter the appearance of a building that is an integral part of the area’s character (see figures 5.3.3 to 5.3.6 for examples). Careful consideration needs to be given to ensure new work is appropriate given the building’s form, massing, scale and architectural style.

Performance Criteria

• The impact of new work on the individual streetscape, including landscape, and the overall character of the area is to be addressed as part of the supporting documentation for development applications in the area, unless the work is of a very minor nature.

• Any proposed new work is to respond to and complement the existing character of the area by demonstrating the following:

(a) the retention of the mixture of low scale terraces and later industrial insertions;

(b) a regard for the scale, form and massing of the existing building(s) and those buildings contained within the broader streetscape;

(c) a response to the architectural characteristics of the existing building(s) in a innovative manner without copying or mimicking them;

(d) a design that is contemporary and is visibly distinguishable as new work, unless the new work reinstates features previously demolished.

Controls
• The variety of housing and industrial types within streetscapes is to be retained despite differences in scale;
• Where the rear of a terrace group displays a consistent form and strong rhythm that is visible from a public space, alterations and additions are to be restricted to the ground floor;
• Attic conversions or roof additions will not be supported on terraces that are heritage items and part of group displaying a cohesive rhythm at the roof level, including the rear, if visible from a public space;
• Front dormers will not be supported on terraces that contain gables;
• Roof additions will not be supported on terraces with parapets where part of the addition is visible from a public space;
• Face brick and sandstone buildings are not to be coated, rendered or painted, where this appearance is an integral part of the building’s character;
• New work is to be visually distinguishable by simple details and the use of sympathetic materials;
• Where off-street car parking is proposed, it is be to accessed from lanes where they exist. Where there is no rear or side lane, access will depend upon traffic safety, visual impact and amenity issues;
• The external characteristics of contributory shopfronts are to be retained.

(3) Contributory Buildings
The following applies to buildings that are identified as ‘contributory’ in the Chippendale Heritage Conservation Study and coloured blue on the Graded Buildings Map – Fig 5.4.13. They include potential heritage items identified in the Chippendale Heritage Study, which are shown in blue with a black border on the map.
Contributory Buildings represent an integral component of the conservation area and generally date from the key periods of development. They include buildings that make a historical and/or architectural contribution to the conservation area either individually or as part of a group. These buildings generally have a high level of intactness, but may have been subject to unsympathetic modifications that are usually reversible. The objective of all new work should have a focus on restoring the buildings’ original elements and features. Guidance may be needed for material choice and colour. The objective of all new work is to be the maintenance of the buildings’ heritage value, scale, form, significant physical fabric and character.…

(4) Neutral Buildings
The following applies to buildings, identified as ‘neutral’ in the Chippendale Heritage Conservation Study and coloured grey on the Graded Buildings Map - Figure 5.4.13. These are buildings that neither contribute nor detract from the character of the conservation area. This grouping includes buildings that may relate to the area’s historic development, but have been substantially altered. In such cases restoration may be preferable to new development, depending on the buildings’ context and significance. The objective of all new work should to be to enhance these buildings where appropriate and feasible. Removal is to be justified where restoration is not proposed.

Performance Criteria

• Alterations and additions to buildings and streetscape elements identified as ‘neutral’ should demonstrate the following:

(a) the removal of unsympathetic alterations and additions;

(b) the appropriate use of materials and colours;

(c) a degree of restraint in the level of alteration to the buildings form.

Controls

• Individual buildings and streetscape elements identified as ‘neutral’ are to be retained and enhanced unless it can be demonstrated that their removal and replacement with a new building will not compromise the significance of the conservation area.

• Where retention is proposed the original form of the building is to be respected. Alterations and additions are not to dominate the original building form, but enhance it;

• Where demolition is proposed, justification for the removal of the building is to be demonstrated in accordance with section 3.0 (of Heritage Conservation DCP 1998).

(5) Detracting Buildings

The following applies to buildings that were identified as ‘detracting’ by the Chippendale Heritage Conservation Study. These buildings are shown in red on the Graded Buildings Map – Fig 5.4.13. These buildings present an aesthetic intrusion to the streetscape and conservation area due to their scale, bulk, setback, setting and/or inappropriate material choice. Redevelopment of these sites is highly desirable. New development should respond to the surrounding context and generally not seek to emulate the features of the detracting building it is proposed to replace.…

5.3.4 New Development – Infill

(1) General

This section should be read in conjunction with part 4.2 of DCP 1998 (Heritage Conservation) relating to infill development. The policy listed below is designed to supplement this section and provide additional guidelines for development within the context of Chippendale. The desired form of infill in the Chippendale area differs from many other conservation areas, due the sharp contrasts in scale between large scale warehouses and low scale terrace houses. Infill development should seek to reinforce this character with the appropriate placement of new forms that take into account other environmental planning provisions. Special consideration also has to be given to the building’s detailing so that it responds to the area’s historic development.

Performance Criteria

• The design of infill development should demonstrate the following:

(a) a scale that reflects the predominant surrounding built form;

(b) the reinforcement of the surrounding urban structure;

(c) a response to other elements within the streetscape;

(d) a high quality finish.

Controls
• The impact of infill development on the individual streetscape, including
landscape, and the overall character of the area is to be addressed as part of
the supporting documentation for development applications in the area
through the preparation of a heritage impact statement;
• The sharp contrast in scale that exists between low scale terraces and larger scale warehouses is an essential characteristic and is to be responded to. Transitional development that provides a step between buildings of contrasting scales is not appropriate where visible from the public domain;
• The mass or bulk of the building is to be focused toward the street front in keeping with the area’s predominant built form;
• Buildings should generally be built from boundary to boundary at the street front, unless side passages are a common feature in the streetscape;
• Infill development on corner sites is to address the corner and unite different streetscapes. This is to be achieved by providing a hard edge at the corner and utilising similar design elements on each streetscape so that the building appears to turn the corner. Variations in style and height to reinforce the corner may be appropriate provided a sympathetic design connection with opposite corners and adjoining buildings is produced;
• New elements that may result in a significant change to the character of a streetscape are not to be introduced;
• Infill development is to have a fine-grained finish that is in keeping with the area’s character;
• Active street fronts are to be promoted to avoid blank street walls.

(2) Small Scale Infill
The following relates to residential/commercial terraces or townhouses and other small scale development. For the purposes of this section, this type of development is generally regarded as two and half stories in scale or less. A half storey relates to habitable attic space or an additional floor incorporated into roof space. Terrace housing in the area is generally two and a half stories or less. However there are cases for variation where terrace infill is to occur adjacent to terraces of a grander scale. This type of development is appropriate in streets that predominantly contain traditional terrace housing. The design of small scale development should respond to the form and style of traditional terrace houses
found in the area (see figure 5.4.7).…

(3) Large Scale Infill

The following relates to residential flat buildings and other large scale development. For the purposes of this section, this type of development is generally regarded as three storeys or more in scale. This type of development is generally appropriate in streetscapes containing a large proportion of warehouses and industrial buildings. The policies contained in this section should not be applied where infill is to occur adjacent to grander terraces which may be three or more storeys in height. The more successful examples of large scale infill found in Chippendale have responded to the simple, robust and cubic form of the Federation warehouse (see figure 5.4.8). The Strickland Building also provides another model that may be appropriate on large sites (see Figure 5.4.9). Generally the design of large scale infill development should respond to the form and style of the warehouses found in the area, to maintain and enhance the area’s existing character (see figures 5.4.10 – 5.4.12).

Performance Criteria

• The design of residential flat buildings and other large scale infill and should demonstrate the following:

(a) a simplicity of form and detail that responds to the bold characteristics of warehouses and other industrial buildings;

(b) modest articulation using bays and piers to promote a sense of rhythm;

(d) minimal setbacks so as to present a strong edge;

(e) a connection between major horizontal elements of adjacent large scale buildings;

(f) finishes that are sympathetic to the traditional materials displayed on warehouses.

Controls

• Large-scale infill development is to be located within streetscapes that predominantly consist of warehouses and other industrial buildings;

• Large-scale infill development shall reinforce the boundaries of the area and the central corridor created by Abercrombie Street, with larger scale buildings located toward these areas;

• Facades are to be articulated with vertically proportioned bays and piers occurring at regular intervals;

• Window openings that are visible from a public place are to be vertically proportioned;

• Roof forms should be generally flat and obscured from view by a parapet of simple design;

• Balconies are to be recessed through punched wall openings;

• Colour schemes are to consist of recessive colours displaying a simplicity of detail;

• Finishes should be predominantly face or painted brick, with masonry blocks or rendering kept to a minimum;

• Cooling towers, plant rooms and other utilities are to be incorporated into the main building structure.

…

Glossary

…

Neutral Building:

Buildings that neither contribute nor detract from the character of the conservation area. This grouping includes buildings that may relate to the area’s historic development, but have been substantially altered. In such cases restoration may be preferable to new development, depending on the buildings context and significance. This grouping also includes contemporary buildings that do not detract from the streetscape due to their sympathetic design in terms of scale, mass, setback and style.

39 . The subject site has characteristics which fit within the "Large Scale Infill" development of the conservation DCP. It also seems to me that the subject site falls between that categorisation and "Small Scale Infill" development, because the subject site is significantly smaller than the site of the Strickland Building and because of the existing terraces west of Balfour Street in Meagher Street. However, in both categories under the DCP, emphasis is placed on vertically-proportioned elements: in respect of large-scale infill development, the façade is to be articulated with vertically-proportioned bays and piers occurring at regular intervals, and balconies are to be recessed through punched wall openings.

40 . The scale of contributory buildings that are immediately adjoining the subject site in Meagher Street is much lower than the applicant’s proposed building. As I mentioned, regard should also be had to the height and scale of the subject building itself (which is proposed to be demolished) and to the corner shop and Victorian terraces on the opposite side of the street. It is not as if the proposed building is replacing a similarly large building that is ripe for redevelopment. Part of the streetscape at the present time includes the existing subject two-storey building.

41 . Query whether a new architectural design could provide for a building or part of a building of a lower scale (than presently proposed) on the western third or half of the subject site adjacent to the existing two-storey terraces facing Meagher Street and for the remainder of the subject site extending to the corner to perhaps rise to four storeys with a setback of the upper floor to reduce the overshadowing in midwinter of the two-storey Victorian terraces on the opposite side of Meagher Street. In any new design, consideration could also be given to the opinion of Ms Kemp that “the building should not exceed the height of the existing building at the street frontages (note: there is opportunity for an additional, set-back floor)”.

42 . As indicated above, the relationship of the western part of the proposed new building to the adjoining terraces is not altogether good. Also, a discordant element is the partly excavated carpark with its vent of aluminium louvres on top of a block wall set back from the street boundary by approximately 100 mm. Adjoining the closest terrace, the top of the carpark vent is 1.8 m above the footpath. While some buildings in narrower streets or lanes elsewhere in the conservation area have nil setbacks for their windows, in Meagher Street the terraces at least have small recessed entrances or verandas.

12. Is demolition of the existing building appropriate?

43 . Evidence for the applicant was mainly given on this question by Mr Howells for the applicant and by Professor Weirick for the council. I have also had regard to the opinions of the other experts who considered this question. Although Mr Newell on a walk-through inspection thought that the fabric and structure of the building was sound, cracks and other defects were indicated during the site inspection by Mr Davies. It is clear that non-structural elements are in a fair-to-poor condition as stated by Mr Newell. Professor Weirick provided a detailed response (exhibit 21) to the evidence of Mr Howells. Among other things, Professor Weirick was of the opinion that the subject existing building has heritage significance, being part of a continuous group of Federation-era shops and terrace houses. Because of the detailed matters referred to in that report by Professor Weirick, I am of the opinion that the consent for the demolition of the existing building should not be granted unless and until an appropriate replacement building or buildings are proposed that warrant the granting of consent. Overall, however, the existing subject building in my opinion does not merit being listed as a contributory building, which listing would ordinarily require its restoration rather than demolition. Unsatisfactory façadism is to be avoided. In accordance with the conservation DCP and heritage guidelines, an archival record should be prepared and submitted to the council before the demolition of the subject building.

13. Summary of the main findings

44 . The existing building on the subject site is listed as a “neutral building” under the conservation DCP. However, on the evidence of Professor Weirick, the existing building does have significance as being part of a group of early 20th century juxtaposed buildings, being a corner shop, a row of terraces and (on the subject site) a two-storey industrial or warehouse type of building. Although Sydney City Council opposed the demolition of the existing building, it seems to me that it would probably be in order to approve of its demolition if a suitable replacement building or buildings were proposed, which was also the opinion of South Sydney Council's heritage planner, Ms Kemp.

45 . The external appearance of the proposed four-storey building (above a partly excavated carpark) may be quite acceptable in another location outside the conservation area and perhaps on a larger site that would provide open space for landscaping around the building, instead of having a nil setback to all boundaries. The design of the proposed building emphasises wide horizontal elements that seem to be out of character with the more vertically emphasised elements of contributory buildings in the locality. The design, form and materials of the proposed building clash somewhat with the architectural style, form and finish of the heritage item, Strickland Building, located diagonally opposite the subject site.

46 . In addition, the proposed building exceeds not only the height of the existing building that it would replace but also the 12 m height limit under DCP 1997. (This DCP defines “height” as the vertical distance between a point on the ceiling of the topmost habitable floor and the natural ground level immediately below that point but does not include an attic elsewhere defined.)

47 . At the same time, the floor-to-ceiling height of all of the proposed residential floors is less than the minimum of 2.7 m recommended under SEPP 65. The proposed central and western units on the first three residential levels (a total of six units) facing north would be overshadowed in midwinter by the taller warehouse building located 6.5 m away on the opposite side of Teggs Lane. Each of the western units of the four residential levels on the southern side of the proposed building (a total of four units) has windows facing only southward. Increased floor-to-ceiling heights would allow better daylight and ventilation for these ten affected units.

48 . The proposal also substantially exceeds the floor space ratio of the existing building on the subject site as well as that specified in the DCP 1997.

49 . The diverse character of the conservation area with its varying types and heights of existing buildings may be a justification for some departures from DCP 1997. However, the predominant form and scale of the existing two-storey contributory buildings in Meagher Street between Balfour Street and Abercrombie Street, together with the scale of the neutral, existing subject building itself, suggests that a replacement building or buildings on the subject site (or at least on the western third or half of the subject site) should be more comparable with those buildings than what is proposed. Moreover, because Meagher Street is 15 m wide and not 20 m, the presently proposed building will adversely overshadow in midwinter the shop and three terraces on the southern side of Meagher Street.

14. Orders

A J Nott,

Commissioner of the Court

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Citations

Kanobay Pty Ltd v Sydney City Council [2004] NSWLEC 493

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CITATION:	Kanobay Pty Ltd v Sydney City Council [2004] NSWLEC 493
PARTIES:	APPLICANT Kanobay Pty Ltd RESPONDENT Sydney City Council
FILE NUMBER(S):	10327 of 2003
CORAM:	Nott C
KEY ISSUES:	Development Application :- Proposed demolition of a two-level warehouse and the erection of a four-level residential aparatment building containing 20 units above a semi-basement carpark - soil contamination - heritage considerations re demolition of existing building and design form and scale of proposed building in conservation area - overshadowing - amenity of future occupants
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 97(1)
CASES CITED:
DATES OF HEARING:	15-17 Ootober 2003, 24 June 2004 (mention), 29-30 June 2004
DATE OF JUDGMENT:	09/15/2004
LEGAL REPRESENTATIVES:	APPLICANT Mrs M-L Taylor, solictor SOLICITORS Norman Waterhouse RESPONDENT Mr D T Miller, barrister SOLICITORS PricewaterhouseCoopers Legal