Maygood Australia Pty Limited v City of Sydney Council

[2006] NSWLEC 423

Land and Environment Court

of New South Wales

CITATION:	Maygood Australia Pty Limited v City of Sydney Council [2006] NSWLEC 423
PARTIES:	APPLICANT Maygood Australia Pty Limited RESPONDENT City of Sydney Council
FILE NUMBER(S):	11561 of 2005
CORAM:	Roseth SC - Brown C
KEY ISSUES:	Development Application :- alterations and additions to an existing building for a mixed retail, commercial and residential development - appropriateness of design - impact on consevation area - amenity impacts
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998 State Environmental Planning Policy No. 65
CASES CITED:	PDP (Darlinghurst Apartments) Pty Limited v City of Sydney Council [2005] NSWLEC 41
DATES OF HEARING:	3, 4, 5/07/06
DATE OF JUDGMENT:	07/14/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr P Tomasetti, barrister RESPONDENT Mr M Craig QC SOLICITORS Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC with Brown C

14 July 2006

11561 of 2005 Maygood Australia Pty Limited v City of Sydney Council

JUDGMENT

1 COMMISSIONERS: This is an appeal against the refusal of Application No. D/2005/01901 by the City of Sydney Council (the council) for the construction of a mixed retail, commercial and residential development at 320 Liverpool St., Darlinghurst (the site).

The site

2 The site has a southern boundary to Liverpool St of 29 m, a western boundary to Little Surrey Street of 38 m and a northern boundary also to Little Surrey Street of 29 m giving a total site area of 1,062 m2. It contains a two storey inter-war Stripped Classical Style building erected in 1926 as the City Eastern Telephone Exchange with a 1930s addition on the eastern side in a similar architectural style. The building is currently vacant and was most recently used as office space.

3 Directly to the east of the site is the Telstra Utility building constructed during the 1970s, which is still in use. To the west and on the opposite side of Little Surrey Street is the Camelot apartment building. Adjoining the Camelot Apartments building to the north is the Poya Inn Hostel, the rear of which is on the alignment of Little Surrey Street. Development to the north is predominantly small-scale residential although the area also includes commercial uses. The St Vincent's Hospital Precinct is to the south of the site, while the Darlinghurst Public School and St Johns Church are nearby.

4 Despite its name, Little Surrey Street is only a narrow lane.

Background

5 The site was subject of a previous appeal (PDP (Darlinghurst Apartments) Pty Limited v City of Sydney Council [2005] NSWLEC 41) in which Talbot J upheld the appeal and granted development consent (Barcom Avenue Conservation Area) on 10 February 2005 for a mixed retail, commercial and residential development. The proposal involved the retention of part of the existing building and the construction of a residential component comprising 27 units over four levels. The proposal had an FSR of 3.93: 1 and a height of 27 m at the south eastern corner.

The proposal

6 The proposal provides for the retention of the existing building as a podium to be used for retail use on the ground floor and commercial on the first and second levels. The retail and commercial component of the development comprises 1,956 m2. Two basement levels are to be excavated below the existing building to provide 35 car parking spaces.

7 Seven levels of residential accommodation are to be constructed in different configurations and occupying different areas of the site above the existing building and providing for 48 residential units with a total floor area of 3,995 m2. The proposal has an FSR of 5.6: 1 and a height of 34.4 m.

Relevant planning controls

8 The site is within Zone 10 Mixed Uses South Sydney Local Environmental Plan 1998 (LEP 1998). The proposed use is permissible if consistent with the zone objectives. The site also falls within Conservation Area CA4 – Barcom Avenue Conservation Area. Clause 10 provides that consent must not be granted unless the proposal is consistent with the objectives of the zone. Clause 22 provides that consent must not be granted unless the proposal is consistent with the heritage aims of that clause. Clauses 23A, 23B and 24 provide further heritage requirements.

9 South Sydney Development Control Plan 1997: Urban Design (DCP 1997) also applies. Clause 4 in Part A under the heading How to use this plan states, in part:

This Urban Design Plan is an integrated resource document based on a set of design elements. It adopts a performance-based a system of control that focuses on matters to be addressed could performance criteria, to achieve desired outcomes. This approach allows flexibility and innovation by not restricting design solutions to a particular prescriptive standard (except for health and safety reasons).
The emphasis of the Plan is on the assessment of application on merit to achieve the best possible balance between the diverse and sometimes conflicting issues that affect development sites.

10 Part E of DCP 1997 provides requirements for floor space ratio (FSR) (cl 2.2), height and scale (cl 2.3) and facade treatment (cl 2.4). For the subject site, DCP 1997 establishes a FSR of 2: 1 and a height of 18 m.

11 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (cl 30(2)(c)).

12 The council filed an Amended Statement of Issues containing eight issues, which can be grouped into the following main areas:

1. whether the proposed development is appropriate within its context (Issue 1 – Height, Issue 2 – Setbacks, Issue 3 – FSR and Issue 4 – Built Form);
2. whether the proposed development unacceptably impacts on the Barcom Avenue Conservation Area and the heritage qualities of the existing building (Issues 5 and 6); and
3. whether the proposed development creates unacceptable amenity impacts on nearby residential development (Issues 7 and 9).

The evidence

13 Mr Brett Newbold, an architect and urban designer and Mr Graham Brooks, a heritage architect provided evidence for the applicant. Ms Kerrin Lithgow, a town planner with the council and Mr John Poulton, a heritage specialist provided evidence for the council. Additionally, several nearby residents put their concerns before the Court during the visit to the site.

14 Ms R Tantun, who lives at 14 Little Surrey Street said that she was concerned about the loading dock in Little surrey Street opposite her property, and the excessive height of the building, which will impose a visual bulk and reduce her privacy. She also spoke on behalf of Ms M Fox, who lives at Little Surrey Street, but was not well enough to address the Court. Mr P Gow, who lives at 12 Little Surrey Street, supported the proposal because it improved the existing development on the site. Mr M McCarthy, who lives at 8 Little Surrey Street, said there was already too much traffic in the narrow Little Surrey Street and the proposal will tower over the houses. He was also concerned about the impact of excavation on ground water. Ms J Barrett, who lives at 2/96 Surrey Street and whose apartment looks south, said she was concerned about the proposal’s impact on her daylight, outlook and privacy. Ms J Milton, who lives at 1/96 Surrey Street (one floor below Ms Barrett), said that aesthetically she preferred the current proposal to the previously approved one, but not the increase in FSR, height and traffic. Mr T Dugan, who lives at 108 Surrey Street, said that he objected to the height and mass of the proposal, which in his opinion was unreasonable. He was content with the previously approved scheme. Mr G Gargoulakis, who lives at 106 Surrey Street, made the same comments as Mr Dugan.

The proposal and its context

15 Mr Newbold and Ms Lithgow agreed that strict compliance with the FSR and height controls in DCP 1997 were not necessary as long as there would be no adverse impacts on townscape, streetscape and amenity. Both experts were content to adopt the flexible approach of DCP 1997, albeit with different results.

The applicant’s evidence

16 Mr Newbold says that visually and functionally the site’s most immediate relationships are with the highly urbanised and dense St Vincent's Hospital Precinct to the south and the 50 m high Telstra building to the east. He notes that visibility is a significant influence on urban design and that for the visibility of the subject proposal is limited by the height of surrounding buildings. In his opinion, the highly articulated form of the development addresses the characteristics of the surroundings.

17 Mr Newbold believes that the retention of the existing building provides a coherent response at street level. The height at the Liverpool Street frontage provides a visual transition from the 7 to 8-storey Camelot apartment building and the 50 metre high Telstra building. To the north, the reduction in height by four storeys at the northern elevation to Little Surrey Street respects the lower scale character of the residential neighbourhood. The western elevation displays a transition between differing heights of the northern and southern elevations and the facade contains four distinct elements, each varying in height and setback. Overall, the building form and architectural design respond appropriately to the diverse character of the surrounding locality.

The council’s evidence

18 Ms Lithgow describes the Telstra building as an anomaly within the context of the area and not suitable as a benchmark for assessing the character of the area. Similarly, the use of the St Vincent's Hospital, as a contextual consideration is unreasonable due to the different zoning of the site and the fact that it has no development controls. Ms Lithgow sees the proposal’s northern elevation as intrusive and overwhelming on the intact and cohesive group of one and two-storey dwellings in Little Surrey Street. The lack of a setback at the western elevation creates a canyon, particularly where the Poya Inn hostel is on the other side of Little Surrey Street and where the separation between buildings would be only 4.86 m.

Findings
Basis for assessment

19 While we agree that DCP 1997 encourages a merit-based assessment in preference to reliance on numerical controls, we think that the relevant objectives of controls provide some guidance on appropriate building form. The FSR objective is to control the floor space of new development to ensure that its intensity respects and reflects the overall built form and does not detrimentally affect the amenity of the area (cl 2.2, Pt E).

20 The height and scale objectives relevantly seek to ensure buildings are appropriate in scale, compatible and complementary to the areas of townscape significance, the site and its context and achieve high environmental amenity (cl 2.3, Pt E).

21 The setback objectives relevantly seek to encourage setbacks that will complement the streetscape and assist in the integration of new development into the streetscape (cl 2.4, Pt E).

22 The facade treatment objectives relevantly seek to ensure building facades reinforce the character and continuity of streetscape by recognising contextual cues particularly in streetscapes of heritage significance and contribute to harmonious and robust streetscapes (cl 2.5, Pt E).

The Liverpool Street frontage

23 As regards the Liverpool Street frontage, we do not agree that because the scale of the Telstra building is anomalous, it should be disregarded. While it is undoubtedly out of scale with the rest of the street, for better or for worse, it exists. Similarly, we do not accept that the proposed development on the St Vincent Hospital site (the Garvan Institute) should be disregarded merely because it is within a different zone to the site. Nor should the Camelot apartment building be disregarded because it is inconsistent with current planning requirements. These buildings form part, or will form part of the streetscape of Liverpool Street. The ordinary passer-by would perceive the height, bulk and scale of the buildings without being aware of zone boundaries or compliance with current planning requirements. If the Telstra building and the Camelot apartments were replaced, it is unlikely that their replacement would be smaller. In our opinion, therefore, the height at Liverpool Street of the proposal, being between the Telstra building and the Camelot apartments, is acceptable.

24 In coming to this conclusion, however, we do not agree with Mr Newbold that the abovementioned tall buildings should be used as the only benchmarks for the Liverpool Street facade. In our view, the relationship line between the Telstra building and the Camelot apartments drawn by Mr Newbold to support the height of the proposed building is only one consideration, a consideration that does not address the architectural treatment of the proposal. While we accept that the height of the proposed building at Liverpool Street may be justified by its relationship to the other tall buildings around it, we do not accept that the facade treatment reinforces the character and continuity of streetscape or that it by recognises contextual cues. The main contextual cue, of course, is the retention of the existing building (in contrast to the 2005 approval in which only half was retained). This is a positive aspect of the proposal; however, the new residential component is entirely alien to the base, mainly because of the emphasis on heavy-looking cantilevered balconies, which are out of character with the classical façade of the base. The clash between the old and the new elements is exacerbated by the lack of adequate setback between the two. Unlike Mr Newbold, we do not think that the building will appear as having tripartite vertical layering made up of a base, middle and top.

25 We think that Ms Lithgow is closer to the mark when she says that the lack of setback, combined with the height and width, will relegate the existing building form to a non-descript base rather than an interesting visual element that contributes positively to the streetscape and the conservation area. In our opinion, the cantilevered balconies, blade walls and the enclosed form of the western balconies reinforce the bulk and overbearing appearance in Liverpool Street.

26 We note that the above criticisms of the architectural treatment have a large element of subjectivity. We accept that different designers might have different responses to building on top of a building with a neo-classical façade. While we consider the façade treatment to Liverpool Street to be a negative feature of the proposal, we would not refuse the application for that reason alone.

The southern Little Surrey Street facade

27 DCP 1997 places strong emphasis on how a building relates to its neighbours. While the proposal addresses Little Surrey Street differently to Liverpool Street, namely through stepping down to four storeys (above the existing building), its relationship to this narrow lane is far short of acceptable. This is the part of the building where the designer should have exercised restraint, instead of opting for maximising floor space.

28 Little Surrey Street is a dead-end, the width of the northern part is 6.25 m and its 3 -wide carriageway provides frontage to five two-storey and single-storey dwellings, as well as access to a number of other dwellings, which have frontage to Surrey Street.

29 Levels 4 to 6 of the proposal’s residential component are located 4m from the Little Surrey Street alignment, with cantilevered balconies protruding a further 2m into this meagre setback. There are nine balconies and one terrace running the width of the building. The amenity of Little Surrey Street is already affected by the Telstra building as well as the existing building on the site through its height and zero-setback. The closeness of levels 4 to 6 of the proposal would reduce the street’s amenity to a level below acceptable.

30 We note from the applicant’s Statement of Environmental Effects prepared by urbis JHD that the recommended development response (p 36) to Little Surrey Street is a 13 m setback of new upper storeys. We note also that the proposal that was the subject of the 2005 approval has a setback of more than 9 m from Little Surrey Street. We cannot think for what reason (other than for increasing floor space) this proposal has come as close as 2m to the street.

31 The sightlines indicate that when the setback of the new component is in the vicinity of 10 m, a person looking out of a first or second storey window from a house on the north side of Little Surrey Street would not be aware that the new component exists. However, with the balconies of the new component 2 m from the street, the little amenity that the street now possesses is completely destroyed. It is not so much a matter of impact through overlooking as through visual bulk and domination.

32 In addition to the dwellings that front to Little Surrey Street, those with frontage to Surrey Street also have outlook from the rear of their properties towards the site. While they are not affected as badly as the dwellings in Little Surrey Street, the proximity of levels 4 to 6 creates an added sense of enclosure.

33 We acknowledge that the opportunity to view Little Surrey Street from the balconies and terrace may improve surveillance of the street; however, this positive aspect is not sufficient to overcome the proposal’s unacceptable relationship to the small-scale residential development in the conservation area to the north.

The western Little Surrey Street facade

34 The western part of Little Surrey Street is even narrower than the northern part: it has a width of 4.85 m. The majority of the development on the western side consists of parking for the buildings that have frontage to Victoria Street. The exception is the Poya Inn hostel, which extends to the alignment of Little Surrey Street.

35 While the inadequate setbacks to the north and south impact on the western elevation, the articulation and varied setbacks render this façade acceptable. This is despite the minimal separation from the Poya Inn hostel, which occurs only for a short distance. Despite the above, it would be more sensitive not to locate a 34 m high building on the alignment of a 5 m wide lane.

36 In our opinion the proposal does not achieve the objectives of the development controls in DCP 1997.

• It does not achieve the FSR objective because its intensity does not respect or reflect the overall built form and it detrimentally affects the amenity of the area (particularly to the north).
• It does not achieve the relevant height and scale objectives because it is inappropriate in scale, incompatible with the site’s context and with areas of townscape significance (particularly to the north).
• It does not achieve the relevant setback objectives because its setback does not complement the streetscape and assist in the integration of new development into the streetscape.
• It does not achieve the relevant facade treatment objectives because it does not reinforce the character and continuity of streetscape by recognising contextual cues.
  

37 The proposal is also inconsistent with several Design Principles in SEPP 65, namely Principle 1: Context, (in that it does not contribute to the quality and identity of the area); Principle 2: Scale, (in that it does not respond to the scale of existing development); and Principle 3: Built Form, (in that it does not contribute to the character of streetscapes).

Heritage impacts
The Barcom Avenue Conservation Area

38 The site is at the edge of the conservation area, of which the southern boundary is at Liverpool Street and the western boundary at Little Surrey Street. LEP 1998 identifies the existing building as being contributory to the Conservation Area.

39 Mr Poulton states that the height, scale, form and limited setbacks of the new component will visually dominate the one and two-storey terraces in Little Surrey Street. The tower component will add to the existing unsympathetic backdrop to the conservation area created by the adjoining Telstra building, thus adversely impacting on the area’s setting and the outlook from it. Overall, the development is not compatible with the site and its context and is an unacceptable response to the heritage values of the conservation area.

40 Mr Brooks maintains that the proposal’s relationship with the Telstra building and the Camelot apartments is appropriate and will have no adverse impact on the character of the conservation area. The upper portions of the proposed building have been deliberately designed without excessive setbacks in order to achieve the most appropriate architectural composition for the building.

41 Mr Brooks believes that the setbacks do not exacerbate the sense of a canyon-like effect in Little Surrey Street. Compared to the 2005 approval, sightlines will not be adversely affected by the additional building volume. The site is also not located within one of the characteristic streets that define the conservation area and will not reduce the contribution of any of the terrace houses and streetscapes that define the character.

42 We have already found that the height at the Liverpool Street frontage is acceptable. Notwithstanding its location within the conservation area, the proposal’s height is compatible with and complementary to surrounding buildings, existing and proposed. However, we also found that the Liverpool Street façade was inappropriate in relation to the existing building and the streetscape. To that extent the proposal impacts adversely on the conservation area.

43 We have also found that the relationship with the dwellings to the north is unacceptable. This finding becomes more important when the dwellings are in a conservation area. For reasons mentioned previously, the northerly setback of the proposal from Little Surrey Street is inadequate. The proposal is thus inconsistent with aims and objectives (e), (f) and (g) in cl 22 of LEP 1998. Clause 22 of the LEP precludes consent being granted if a development is inconsistent with the aims and objectives in this clause.

The existing building

44 We have already addressed the disagreement between Mr Poulton and Mr Brooks over the compatibility of the additional floors with the existing building in favour of Mr Poulton and Ms Lithgow, who advocate larger setbacks between the existing building and new components. We have also addressed the architectural relationship between the old and new components.

45 The other area of disagreement between Mr Poulton and Mr Brooks was the proposed loading dock in the northern elevation. Mr Poulton expresses concern over the scale of the opening and the consequent removal of important elements of the architectural composition of the facade. Mr Brooks takes the view that the opening is confined to the 1930s extension and it is located in the rear of the building. Therefore the change to the facade is not readily apparent from the majority of the conservation area.

46 Putting aside the matters addressed later in the judgement on the location of loading dock, we agree with the conclusions of Mr Brooks. The building is not identified as a heritage item. While some part of the facade will need to be removed to accommodate the loading dock, the visual impact on the existing building is not sufficient reason to relocate the loading dock.

Amenity impacts
Overlooking

47 Overlooking was raised as an issue by the objectors. With the benefit of the site view and sightlines, we do not think that the extent of overlooking would warrant the refusal of the application. The sightlines into the dwellings in Little Surrey Street are at such a steep angle that little if any of the interior dwelling would be visible. Where there are rear courtyards to these dwellings, the area is partially screened by the existing dwelling and with a minimum distance of around 20m from the overlooking sources at the lower levels of the proposed building, the separation would ensure an adequate level of privacy.

48 The horizontal separation between the lower levels of the proposed building and the balconies of the dwellings fronting Surrey Street is in the order of 28 m. This separation is also adequate.

Loading dock access

49 The proposal provides for a loading dock off Little Surrey Street for the commercial and retail uses within the existing building. All the residents of Little Surrey Street expressed concern that the width and alignment of the street was unsuitable for delivery vehicles. While the loading dock location was supported by a report from a traffic engineer, in our opinion the concerns of the objectors are justified.

50 The width and alignment of Little Surrey Street is unsuitable for delivery vehicles. We note that the traffic report suggests conditions to limit deliveries to certain times and vehicle size. In our view, conditions of consent are unlikely to guarantee the protection of the amenity of the residential properties in Little Surrey Street from conflicts associated with residential traffic and delivery vehicles. The applicant indicated that it would prefer to amend the application to a refusal. If this were the only flaw in the proposal, we would adjourn the case to allow the applicant to amend the proposal so that all vehicular access occurs from Liverpool Street.

Conclusions

51 In our opinion, the proposal fails to meet several objectives of LEP 1998 as well as the relevant objectives of the development controls in DCP 1997. The two main reasons for its failure are its excessive floor space and its inadequate setbacks, mainly from the north boundary. The appeal is therefore dismissed.

1. The appeal is dismissed.

2. Development application No D/2005/01901 by the City of Sydney Council (the council) for the construction of a mixed retail, commercial and residential development at 320 Liverpool St., Darlinghurst is determined by refusal.

3. The exhibits are returned.
_______________________ ___________________
Dr J Roseth G Brown
Senior Commissioner Commissioner of the Court