Modog Pty Limited v North Sydney Council - [2013] NSWLEC 1134

Land and Environment Court

New South Wales

Case Title: Modog Pty Limited v North Sydney Council

Medium Neutral Citation: [2013] NSWLEC 1134

Hearing Date(s): 26-28 June 2013

Decision Date: 24 July 2013

Jurisdiction: Class 1

Before: Morris C

Decision:
Appeal dismissed

Catchwords: DEVELOPMENT APPLICATION: Boarding house, heritage impacts, amenity impacts,

Legislation Cited: North Sydney Local Environmental Plan 2001; State Environmental Planning Policy - (Affordable Rental Housing) 2009; State Environmental Planning Policy No. 1 - Development Standards; State Environmental Planning Policy (Infrastructure) 2007

Cases Cited: Wehbe v Pittwater Council [2007] NSWLEC 827

Texts Cited: North Sydney Development Control Plan 2002

Category: Principal judgment

Parties: Modog Pty Limited (Applicant)

North Sydney Council (Respondent)

Representation

- Counsel: Mr M Staunton (Applicant)

- Solicitors: Mr T Sattler
Sattler & Associates Pty Ltd (Applicant)

Mr J Cole
HWL Ebsworth Lawyers (Respondent)

File Number(s): 10256 of 2013

JUDGMENT

Modog Pty Ltd lodged Development Application DA 447/2012 with North Sydney Council on 20 December 2013 seeking consent for alterations and additions to an existing building, a heritage item, at 317 Pacific Highway, North Sydney to facilitate its use as a boarding house. The front part of the building would be used as commercial office space.
The council refused consent and Modog is appealing that decision. The issues in the case are whether the development is consistent with the council's planning controls, whether objections to development standards contained within those controls should be upheld, heritage impacts and amenity.

The site and its context

The site is described as Lot 1 in Deposited Plan 1052632 known as 317 Pacific Highway and is on the eastern side of the road opposite its intersection with Hazelbank Road. It is irregular in shape with a primary frontage to the highway of 15.17m, a secondary frontage to Eden Lane of 6.6m, a side boundary to Hazelbank Place (pedestrian only) of 11.9m and site area of 896.8sqm.
The existing building on the site, a former Masonic Lodge, is a listed heritage item.
The area is characterised by an established mixed use environment containing commercial, residential and education land uses and a variety of building forms. The site is adjoined to the north by a 2-storey commercial building fronting the Pacific Highway and a 3-storey commercial building fronting Eden Lane. A part 1 and 2 storey commercial building adjoins to the south with a 9 storey residential building with 3 storey terrace dwellings (fronting West Street) on the southern side of Hazelbank Place with access from that laneway.
To the immediate east of the site is a 2-storey detached dwelling (No 36 West Street) that is also a heritage listed item. That dwelling incorporates a single storey extension to the rear of the main dwelling and outdoor living space adjacent to the common boundary. There is vegetation in the backyard including two large eucalypts adjoining and overhanging the common boundary of the site. That property is zoned Residential C.
Bradfield Senior College, another heritage item is located on the opposite side of the highway.

Background and the proposal

The original proposal sought consent for alterations and additions to the former Lodge building for use as a boarding house comprising 61 self contained rooms, five communal spaces, an office, manager's room and a communal laundry and terrace. Demolition of a 3-storey addition to the rear of the existing building and a garage structure at the rear of the site and construction of a basement carpark for 6 cars was also proposed. Modog was been granted leave to rely on amended plans following a conciliation conference held before another Commissioner of this Court. As a result of changes suggested during joint conferencing and during the hearing, further amendments were made to the plans.
The plans now before the Court are for a building of reduced height at the rear, a total of 53 boarding rooms and one manager's residence, manager's office, five common rooms, basement carpark for 6 cars, 12 motor cycles and 12 bicycle lockers. All rooms, other than the four ground level adaptable rooms in the rear building and rooms 22 and 23, also in the rear building, would accommodate two people. The maximum capacity of the boarding house is therefore 94 persons plus the manager.
The front portion of the heritage building would be used for commercial purposes and an area designated as a "gym" on the ground floor of the additional building would be made available to a personal trainer not associated with the boarding house use.
The existing building is a two storey structure, the ground floor of which has been converted to office accommodation and the first floor remaining an open hall space. It is proposed to construct steel frames within each level to divide the spaces into two level boarding rooms. The rooms within the existing ground floor would incorporate a mezzanine bedroom with entry level living space, bathroom and kitchenette on the existing floor level. The rooms within the first floor would provide for larger living areas and kitchen on the lower level with bedroom and bathroom areas on the mezzanine level. A common room would also be provided at that level. A central hallway connects the rooms within the existing building to an entry/exit to the Pacific Highway linking to a new stairway to be installed behind the main hall entry and proposed commercial floor area at the front of the building. The existing timber staircase and tiled entry foyer would be retained within the commercial space.
New openings are proposed within the northern and southern walls of the existing building. Where there are existing windows and doors, those apertures would be increased in size and new openings installed between the existing columns. At ground level, each room would open through a single doorway to individual timber decks slightly elevated above ground level. On the first floor, juliet style balconies would be attached to the side walls of each room and accessed through a set of bifold doors. Those balconies extend to within approximately 600mm of the southern and 1.8m of the northern site boundaries. The rusted roof sheeting on the building would be replaced.
The main entrance to the boarding house would be off Eden Street at the centre of the site. An awning would be constructed above the entrance to the 13 ground floor and 12 upper floor rooms within the existing building.
A new building would be constructed to the rear of the site and linked to the hall by a four level structure comprising bin store at ground level, laundries at first and second floors and a plant area on the rooftop enclosed by parapet walls. The upper floor of the existing building would connect to the second floor of the new structure by a passageway that incorporates stairs.
The new work comprises a basement carpark accessed from a ramp off Eden Street with five levels of boarding accommodation above. Two separate entries provide access to that area, one to the ground floor of the new building which, at ground level provides four adaptable rooms, manager's residence and manager's office. Each of these rooms has access to landscaped courtyards.
The upper floors are accessed from an alternate entry at the western end of the building adjacent to the proposed gym, with a lift servicing the upper floors. Eight boarding rooms, laundry and one common room are provided on level 1, seven boarding rooms and a laundry on level 2, six boarding rooms and a common room on level 3, three boarding rooms, a common room and an enclosed, glass roofed common room on level 4. Small balconies, enclosed with privacy screens are provided to each room on all levels above ground. A balcony opens off the upper floor common room in the north-western corner of the new building.
The new structure would be erected 2.5m from the common, rear boundary with No 36 West Street and is stepped in height so that the upper floor is approximately 9m from the rear boundary. The building is constructed to the northern and southern side boundaries.

The planning controls

The site is in the Mixed Use Zone under North Sydney Local Environmental Plan 2001 (LEP). The general aims of the plan are set out in clause 2 and specific aims for particular forms of development are contained in clause 3. Those relevant to the application are:
for residential development (clause 3(b)):
(i) protect and enhance the residential use and amenity of existing residential neighbourhoods and new residential development, and
(ii) maintain and provide for an increase in dwelling stock, where appropriate, and
for non-residential development (clause 3(c)):
i) maintain a diversity of employment, services, cultural and recreational activities, and
(ii) ensure that non-residential development does not adversely affect the amenity of residential properties and public places, including adverse affectation by reason of the use, design, bulk, scale or appearance of the development, or the traffic generation and parking associated with the development, and
for environmental quality (clause 3(d)):
(v) minimise noise emissions and their adverse effects, and
(vii) promote the efficient use of energy and resources, and
(viii) minimise waste generation, including waste to landfill, and
and for environmental heritage (clause 3(e)):
(i) identify and encourage the conservation of the heritage of North Sydney, including heritage items, heritage conservation areas, Aboriginal sites, bushland, parks, foreshores and trees, and
(ii) ensure that development does not adversely affect the significance of the heritage of North Sydney (including heritage items, heritage conservation areas, Aboriginal sites, bushland, parks, foreshores and trees), and
Clause 14 of the LEP requires consideration of the aims and objectives stated in the plan and requires that consent must not be granted to the carrying out of any development that, in the opinion of the consent authority, is inconsistent with the specific aims of this plan, the objectives of the zone or the objectives of controls.
The objectives of the Mixed Use Zone are:
(a) encourage a diverse range of living, employment, recreational and social opportunities, which do not adversely affect the amenity of residential areas, and
(b) create interesting and vibrant neighbourhood centres with safe, high quality urban environments with residential amenity, and
(c) maintain existing commercial space and allow for residential development in mixed use buildings with non-residential uses at the lower levels and residential above, and
(d) promote affordable housing.
A boarding house is permissible with consent in the Mixed Use Zone.
Development standards for building height (clause 29), building height plane (clause 30), floor space ratio (FSR) (clause 31) apply to the Mixed Use zone with the objectives of the control contained in each clause. In addition, specific provisions in relation to Design of Development are contained in clause 32. This clause states:
(1) Design objectivesThe specific objectives of the design of development in the mixed use zone controls are to:
(a) promote development containing a mix of residential and non-residential uses, and
(b) protect the amenity and safety of residents, and
(c) concentrate the non-residential component of development in the mixed use zone at the lower levels of a building.
(2) Design controlsA new building in the mixed use zone must not be erected unless:
(a) the building contains both residential and non-residential uses, and
(b) the non-residential component of the building is provided at the lower levels of the building and the ground level is not used for residential purposes, except access, and
(c) the residential component of the building is provided with an entrance separate from the entrances to the remainder of the building, and
(d) the building is set back above a podium.
(3) Despite any other provision of this plan, any development in the mixed use zone may contain both residential and non-residential uses.
(4) Prohibited developmentDevelopment that contravenes subclause (2) (a) is prohibited development.
The standards that apply to the site are:
Height - 13m maximum
Building height plane - 3.5m + 45degree angle from eastern boundary.
FSR - minimum non-residential FSR of 0.5:1 - 2:1
The height of the building to be erected to the rear of the existing building is 13.67m and therefore exceeds the development standard for height. The new building to be constructed at the rear of the site also exceeds the standard for building height plane although the extent of variation was reduced through the submission of further amended plans that deleted two boarding rooms at the upper level on the eastern end of that building. The extent of non-residential floor space does not satisfy the minimum FSR required under clause 31(2).
Objections to each of those standards has been lodged with the application however, the applicant argues that the provisions of State Environmental Planning Policy - (Affordable Rental Housing) 2009 (SEPPARH) override those controls in the event of an inconsistency between the policy and the LEP. This issue is discussed later in the judgment.
Heritage provisions are contained in Part 4 of the LEP and, in accordance with clause 43, prevail over all other provisions of the LEP to the extent of any direct or indirect inconsistency. The objectives of the conservation controls are:
(a) ensure the protection and management of Aboriginal sites and relics, and
(b) ensure the proper management of archaeological resources, and
(c) ensure the conservation of heritage items (and their curtilages) and conservation areas, and
(d) ensure that development does not adversely affect the heritage significance of heritage items and conservation areas.
Objectives and Controls for heritage items are contained in clause 48 and those subclauses relevant to the application are:
1) Heritage item objectivesThe specific objectives of the heritage item controls are to:
(a) prevent the demolition of heritage items, and
(b) provide specific criteria to be considered when determining an application in respect of a heritage item, and
(c) ensure heritage items are conserved and maintained.
(2) Heritage item controlsWhen determining whether or not to grant consent to a development application in respect of a heritage item, the consent authority must consider the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item concerned.
Note. The website of the Heritage Branch of the Department of Planning has publications that provide guidance on assessing the impact of proposed development on the heritage significance of items (for example, Statements of Heritage Impact).
(3) The consent authority's consideration under subclause (2) must include (but is not limited to) consideration of:
(a) the heritage significance of the item as part of the environmental heritage of North Sydney, and
(b) the impact that the proposed development will have on the heritage significance of the item and its setting, including any landscape or horticultural features, and
(c) the measures proposed to conserve the heritage significance of the item and its setting, and
(d) the extent, if any, to which the carrying out of the proposed development would affect the form of an historic subdivision.
(4) Required documentation: heritage itemsBefore determining whether or not to grant consent to a development application in respect of a heritage item, the consent authority may require the submission of:
(a) a statement of heritage impact or a conservation management plan, and
(b) a structural engineer's report.
Clause 50 requires consideration of the impact of the proposed development on the heritage significance of the adjoining heritage item and its curtilage.
North Sydney Development Control Plan 2002 (DCP) applies to the site and has particular controls for Mixed Use Development (Section 6), Cultural Resources and Heritage (Section 8), Car Parking (Section 9), Boarding Houses (Section 10) and includes particular character statements. The site is located in the Eden Neighbourhood (clause 1.4).
Draft North Sydney Local Environmental Plan 2012 has been exhibited and would include the site in Zone B4 - Mixed Use and boarding houses would be permissible with consent. A maximum building height of 13m would continue to apply to the site and the same non-residential FSR controls apply however a different definition of gross floor area is adopted. There is no building height plane control or a requirement that a mix of residential and non-residential uses is required.
Division 3 of SEPPARH applies to boarding houses. It is common ground that the Mixed Use Zone under the LEP is an equivalent zone to Zone B4 and therefore the Division applies to the site. Clause 29 of SEPPARH provides standards that cannot be used to refuse consent. The development does not comply with the standards for height, private open space and parking.
Additional controls are contained in clause 30 and require a consent authority to be satisfied they are met. The only controversy between the parties is whether the provisions of subclause (g) apply. That states:
if the boarding house is on land zoned primarily for commercial purposes, no part of the ground floor of the boarding house that fronts a street will be used for residential purposes unless another environmental planning instrument permits such a use.
The applicant's position is that the site is not land zoned primarily for commercial purposes however, in the event that the Court finds that it is, an objection to that development standard has been lodged. This issue is considered later in the judgment.

The issues

The contentions in the case are whether the development is consistent with the planning controls contained in the LEP; the impacts of the development upon the heritage significance and values of the heritage items at No 36 West Street and the existing building on the site, the former Masonic Hall; internal amenity of development and impacts on adjoining properties in terms of visual and acoustic privacy and lack of information. Contentions regarding impacts on trees and the redevelopment potential of an adjoining site were not pressed by the council as additional information was provided during the hearing or agreed during the joint conferencing, to address those matters.

The evidence

The hearing commenced on site with evidence heard from a number of residents who objected to the proposal. The view included inspection of the site from the adjacent heritage item, No 36 West Street. The issues raised by those persons is summarised as follows:
·Loss of sunlight to Hazelbank Place, garden area, entrance foyer and lower level units of adjoining unit block;
·Loss of privacy to residents of adjoining unit block and adjacent heritage item;
·Amenity concerns;
·Adverse impact on adjoining heritage item due to breach of height and building height plane controls and proximity of large blank wall.
·Considers the design is inappropriate at a zone interface;
·
Expert evidence was presented by:
Area of Expertise                  Applicant  Council
Planning  Mr J Lovell  Mr D Hoy
Solar Access/Ventilation      Mr S King
Heritage  Mr G Brooks  Mr D Logan
Acoustics  Mr T Taylor  Mr G Atkins
Arboriculture  Mr D Ford  Mr B Smith
Valuation  Mr R Montague  Mr J Sheffield
Mr Ford and Mr Smith were not required for cross-examination.

Planning

Mr King says that there is no issue in relation to external overshadowing and that adjoining properties will receive sunlight in accordance with the standards specified in the council's planning controls. The experts agree that the communal room at the top of the rear building will receive three hours sunlight so is compliant with clause 29(2)(c) of SEPPARH. Mr King says that the rooms are satisfactory in terms of ventilation and whilst the front rooms are required to be air-conditioned to address traffic noise for the highway, the option remains for occupants of those rooms to leave the doors open if they desire fresh air. He says the daylight available to the rooms on the lower, southern side of the existing building is diminished by the proximity of the adjoining building and the overhead balconies, and that the amenity is not ideal but is more than adequate for use as a boarding house.

The planning experts agree that clause 30(2)(c) of the LEP is applicable to the proposal and that the building height plane is a development standard that may be varied applying the provisions of State Environmental Planning Policy No. 1 - Development Standards (SEPP1). With the further amendments made to the plans during the hearing, specifically, the deletion of rooms 42 and 43 (rear of level 3) the extent of encroachment to the building height plane is small and not a reason to refuse consent. Accordingly, they agree that the objection to that development standard is well founded.
The planners disagreed whether the provisions of clause 30(g) of SEPPARH applied and if it did, whether it was inconsistent with the provisions of clause 32(2)(b) of the LEP. Mr Lovell says that the land is not primarily zone for commercial purposes and therefore the provisions of clause 30(g) of SEPPARH do not apply. Accordingly, he says that the controls contained in clause 32(b) of the LEP would be inconsistent with the provisions of SEPPARH as that policy allows a boarding house on the land without any restrictions on the allocation of floor space. Mr Hoy was unclear whether the Mixed Use zone would be considered primarily for commercial purposes but says that there is no inconsistency and that the provisions of the LEP that require a minimum of 0.5:1 of commercial floor space applied. They agree that the non-residential FSR of the proposal is 0.22:1. Mr Hoy says that the amount of floor space is inadequate and does not achieve the objective of retaining commercial floor space so does not support the variation to the development standard saying the SEPP1 objection to clause 31 of the LEP is not well founded. He says the former Masonic Hall should be utilised for commercial purposes.
Mr Hoy says the aims of SEPPARH are not met, as the boarding house would not be let on the basis of affordable housing as defined under that policy however conceded that there is no requirement under the policy to set rental levels. Mr Lovell says that whilst this is not required, the development is intended to provide additional housing affordability in close proximity to the North Sydney CBD and public transport connections to the Sydney CBD and wider metropolitan area.
The majority of the council's contentions in relation to external amenity concerns have been addressed through the amended plans, which provide for the provision of privacy screens around the perimeter of the balconies off rooms within the new building and enclose the open link between the existing and new building. The separation between balconies is, in some cases less than 1m.
However Mr Hoy says that these features affect the amenity of the rooms. Mr Lovell says the amenity is reasonable for the purpose of the rooms, that there is no requirement to provide balconies but without them, the amenity would be "not great" and that with them there is better amenity. Mr Hoy says there may be greater benefits to the lower units by deleting the balconies, as this would improve natural light available through the voids and address his concerns of proximity between spaces. The planners agree that the solar access to those lower units is poor.
Whilst not a contention raised by the council, the Court identified the low floor to ceiling height of the lower level units within the existing building that is less than the deemed to satisfy 2.4m identified in the Building Code of Australia (BCA). The plans do not identify the precise height available, a floor to floor dimension of 2.195m is shown. The applicant could not provide the Court with this detail, and agreed that the available height would be less allowing for the steel frame floor structure of the mezzanine. The extent of the ground floor room that has a reduced head height includes the whole of the bathroom and kitchen area, dining area and part of the living area. The remaining living area, having scaled dimensions of 2m x 1.4m (allowing for the mezzanine desk) from the detailed plans Drawing DA11, have double height floor to ceiling of approximately 4.2m minimum.
The lower floor level of the first floor rooms within the existing building would also be less than 2.4m and again, the exact height could not be identified however it was agreed that the floor to floor height of 2.405m would be reduced by the height of the mezzanine flooring structure and at least 65mm for an acoustic floor to be installed above the existing hall floor.
Mr Hoy says this factor provides very poor amenity with a very small space within those units due to the location of the stairs, which cut into the usability of the living space. Mr Lovell says they are low floor to ceiling heights but there are outdoor spaces available to occupants of those rooms and approximately one-third of the living area has the 2 storey open nature.

Heritage

The Former Masonic Temple is a local Heritage Item identified under the LEP. It was erected in 1922 by the Lodge Samaritan and used by the Lodge until 1975 when it was sold. It has been used for commercial purposes since that time. The Statement of Significance contained in the NSW State Heritage Inventory for the property is as follows:
Fine substantial building illustrating the Inter-war Free Classical style. Indicative of importance and prominence of Free Masonry in the period of construction. Significant item in streetscape. A picturesque and imposing building.
The experts agree that demolition of the rear wing of the hall, including both the 1996 and remnant 1922 toilet areas and the post 1976 commercial fit-outs to both levels is acceptable.
They agree that physical and documentary evidence indicates that there was a raised platform around all four side of the first floor hall, and that these were associated with the functioning of the Lodge. Physical evidence indicates that this platform was slightly widened at a later time. The previous stage/platform, at the eastern end of the upper hall, understood to be where the Lodge Master sat, was slightly extended in the1996 adaptation to a Wellness Centre. A proscenium screen and associated storage enclosure were also added to this end of the hall.
It is also agreed that the various changes and alterations made to the building over the years since the Lodge vacated have respected the spatial volume and significant building fabric of the ceremonial hall. By contrast, the spatial character of the former ground floor has been altered, albeit in a partially reversible manner, by the introduction of framed partitioning, some of which does not extend to the ceiling.
They agree that there are no substantive heritage impacts on the heritage significance or setting of 36 West Street arising from the development of the rear accommodation wing and that the issues of potential impacts on residential amenity and compliance with the council's planning controls are matters for the planning experts.
The heritage experts disagree on three major issues:
(1)Whether the proposed adaptive re-use of the former Masonic Lodge has an unacceptable adverse impact on the heritage significance of the building;
(2)Whether the first floor of the existing building should be retained as a single space and given a commercial use;
(3)Whether the erection of the proposed new building to the rear of the former Masonic Lodge would have an adverse impact on its setting and heritage significance.
Mr Logan initiated historical research of the site and part of this work located a Conservation Report on the building prepared by Orwell and Peter Phillips Architects dated February 1996 (Phillips Report). A copy of that report is appended to his Expert Report, Exhibit 5. In addition, contact was made with the librarian at the United Grand Lodge Masonic Library with a view to finding information about the interior of the building. Having reviewed the information available, Mr Logan concludes that "the interior qualities of the building, in particular the aesthetic qualities of the ceremonial hall on the first floor, were, and still are, a major contributor to the heritage significance of the building. Having regard to its assessed level of significance (regional) it is important that the interior of the building retains its aesthetic qualities".
He adopts a recommended conservation policy from the Phillips Report in relation to use of the building which states:
The future uses of the place should be consistent with the preservation and display of the early 20th century Masonic Temple generally as it appeared at the period of its greatest significance (ie around the time of its construction in 1922). Future uses should preferably continue to include assembly on the first floor, and should allow all fabric of high or considerable significance to be conserved. The most appropriate uses would also involve some element of the spirituality which formerly characterised the building.
For that reason, Mr Logan concludes that internal subdivision of the historically and aesthetically important interior of the building, in particular the first floor ceremonial hall, would be inconsistent with the previously identified heritage significance of the building. This use, and required new external openings and internal penetrations would be contrary to appropriate heritage constraints and reasonable conservation policies aimed at retaining the building's heritage significance. He says the subdivision of both levels of the building into a series of 2.6m wide two-storey sole occupancy units means that the existing tall volumes of each level, being subdivided both horizontally and vertically, would no longer be understood or appreciated for their current character or for what they represented.
He says that on the upper level, the impacts of the proposed internal subdivision would be relatively major given the spatial qualities of the interior volume and its domed ceiling, decorative plaster niches/porticos and other distinctive details associated with Masonic use, such as the stage and perimeter seating platform. It would have an adverse heritage impact on the character and legibility of this fine and interesting interior, which is currently able to provide interpretation how the former Lodge was used. This, in itself, is an important aspect of its heritage significance. Mr Logan says the insertion of new French door sets into the side walls, one for each unit, would also have a significant impact on the character of the interiors as well as the exteriors.
Mr Logan was critical of the lack of detail provided with regard to the structural design of the steel structure, fixing details, penetrations required for water, ventilation, air conditioning, sewer, electrical, fire sprinklers, fire separation, smoke detectors and acoustic treatments and despite the additional information provided during the hearing, was not satisfied that the details allowed a proper assessment of the impacts of the works. He says that this level of detail must be know to allow assessment of the impact of that work on the heritage significance of the building. In response to the reflected ceiling plan tendered during the hearing as Exhibit J, he was particularly critical of the location of inter-tenancy walls, which, in some locations, run through moulded insignia in the decorative ceiling.
Mr Brooks firstly disagrees with the significance of the item and says that it would be of local significance only and says the adaptation project is well within responsible mainstream conservation practice for the adaptation of non-residential buildings to residential use. This is to ensure that the major internal subdivision of the upper and lower floor spaces is essentially reversible and by using mezzanine arrangements the spatial character of each floor can be interpreted within the apartments. He relies on the appointment of a Heritage Architect to work with the project team in the detailed coordination and resolution of any issues of physical intervention such that the impacts are minimised and essentially reversible.
He says the architectural features of the upper floor space, particularly the pedimented niches, pilasters, cornices, curved ceilings and remnant Masonic iconography will be retained and protected and where decorative elements are to be retained, they will either be in display within the common areas or the individual dwellings, or encased for their protection behind screen walls that can be removed in the future. Penetrations through ceilings, which he says will be relatively limited, can be repaired during a future renovation or further adaptive re-use. Similarly, openings through rendered brick walls can be repaired in the future and are within current conservation practice methodologies.
Both experts agree that the presentation of the building to the Pacific Highway will be unaffected and that the addition of the Juliet balconies is an appropriate form and, as noted by Mr Logan, would not be highly visible, particularly if the adjacent property to the south is redeveloped. They also agree that the retention of the foyer and stairway is a positive aspect of the development.
They disagree as to whether the first floor of the existing building should be retained as a single space and given a commercial use. Mr Brooks says this is not necessary to protect the heritage significance of the building, that to do so does not guarantee that it would be readily accessible by the public and would require the introduction of disabled access, most probably through a lift within the main access foyer. The main entry to the boarding house and access to the upper levels has been deliberately located in the new rear addition to avoid an otherwise significant impact of the historic building fabric.
Mr Logan considers the proposed use results in major changes to the character and heritage value of the interiors as well as its potential accessibility to the public. Its internal subdivision as proposed, particularly the first floor ceremonial hall, would be inconsistent with the identified heritage significance of the building. He notes the objectives of Section 8 of the DCP in relation to interiors of heritage items which have the primary objective to maintain significant internal features of heritage items in their original form and other objectives that locate internal alterations away from rooms that have intact decorative features, retain original features (such as door sets, fireplaces, flooring, roses, original cornices and ceilings) and says that this is not achieved in the design. He does not accept the view of Mr Brooks that the development is appropriate because it is reversible and says that a more appropriate use of the space would be open-plan commercial offices that would obviate the need to insert new doors and balconies within every bay, subdivide the interior and allow significant volumes and decorative fabric to remain and be appreciated. He considers the development to be a "last resort".
Mr Brooks says that the primary aspects of the building's setting that contribute to its heritage significance is its presence to the Pacific Highway streetscape and that the view of the new building to the rear would not adversely affect the setting or its identity when viewed from the highway. Given its location within a visually rich and complex context with a number of large commercial and residential buildings in close proximity he says the new rear addition will not compete with or regrade the prominence of the historic hall.
Mr Logan says the new building would be quite visible over the roof of the neighbouring single storey building but notes the 13m height limit that applies to the site and says that there is a reasonable likelihood that the site would be redeveloped in the near future so in those circumstances, the scale and visual impacts that would result from the new building would not be unreasonable or unacceptable.

Acoustics

The experts agree that to comply with the acoustic requirements of State Environmental Planning Policy (Infrastructure) 2007 (SEPP2007), both the heritage building and the new building require acoustic treatment to the building shell (windows/doors, external wall construction, roof/ceiling construction and supplementary ventilation) and that the design proposed would allow that criteria to be achieved with windows and doors closed. Accordingly, mechanical ventilation of all rooms would be required.
They had undertaken an assessment of the acoustic reports prepared by Acoustic Logic for the proposed development and Mr Atkins had identified a number of issues that required further information. The joint report was prepared after receipt and consideration of the Acoustic Logic Revision 2 Report.
Mr Atkins was concerned that the area detailed on the plans for the necessary plant was insufficient to accommodate the size of plant required and, because it required acoustic attenuation, he considered that details of the size, materials and design of that enclosure should be detailed. Mr Taylor says that such information is not required at development application stage and that until the equipment is selected and location confirmed, he could not say what the treatment would be or what it would look like when viewed from adjoining properties.
Whilst there is agreement regarding noise generated by the use of common outdoor areas and the need to limit hours of use and acoustically treat those areas, there is disagreement regarding use of the private balconies of individual rooms. Mr Taylor says that there is no need to assess that impact as it is typically infrequent and not a noise source required to be assessed under the EPA or Council guidelines however, says that if it is assessed, then it would be necessary for 1.8m high solid Perspex or similar imperforate sheeting screens to be provided around the perimeter of the balconies and controlled so they are not used after 10pm, and addressed through a management plan.
In some locations, a distance of less than 1m separates the balconies. Mr Atkins says the predicted noise levels from the tenant balconies marginally exceed the DCP evening criteria and noise mitigation to the south facing balconies of the new building should be considered. He is also concerned about the possibility of noise deflection through the lightwells in which the balconies are located and could not say whether the acoustic treatment proposed would achieve the same noise levels as the 9m separation required under the DCP.
Mr Atkins was also concerned that the wall and floor details provided in the Revision 2 acoustic report did not certify the impact isolation requirements, treatments for wall and roof/ceiling penetrations to accommodate ducting, wall/floor connection details for common walls, mezzanine floors and stairs to control impact noise or requirements to accommodate and upgrade window/door glazing to satisfy BCA and DCP requirements. In response, further details were tendered as Exhibit L. Those plans provide for inter-tenancy walls within the heritage building with widths varying from 144mm to 205mm, the latter required between an habitable area and a wet area/habitable area. Mr Atkins says, that in most circumstances, the thicker wall would be required to achieve the necessary acoustic rating whereas Mr Taylor says that the thinner wall could be used if acoustic 90mm pipes could be used.
Additional acoustic treatment was required on top of the existing floor within the ground floor rooms of the heritage building. The plans provide for a 40mm batten and fireblock treatment with 18mm floor sheeting. Mr Taylor says, with use of thinner sheets, the floor could be reduced to 34mm. This would further reduce the floor to ceiling height discussed at [45].
Similarly, acoustic flooring is required at first floor level and two options are provided which vary in depth from 65mm to 81mm depending on the depth of battens used. As the floor to floor height of the upper level rooms is 2.405m the addition of the acoustic floor means that the deemed to satisfy standard of the BCA would not be met. Some of the options require removal of floor boards and others require penetrations of approximately 50mm at 600mm centres to allow for the installation of caulking, spray insulation or fire-rated plasterboard. Mr Taylor could not indicate the extent of intervention required to achieve the necessary BCA compliance.

Valuation

The experts gave evidence in relation to the viability of retaining the site for commercial use. They agreed on the range of rental value of the ground and first floors of the heritage building and that the rental value of the carparking is additional to the office space. They also agree that the site is likely to be more desirable to owner occupier purchasers than investor purchasers, that its economic viability is affected by the price a purchaser would pay for the property and that the economic viability of the building could be improved if the rear land was viably developed.
At the time of preparing their joint report they disagreed on the extent of any rent incentive necessary and the level of outgoings. Further information on outgoings was tendered during the hearing as Exhibit K and was considered by the experts with Mr Sheffield concluding the site was not currently viable as a commercial development and Mr Montague saying it was.

Findings

Having regard to the evidence, the aims of the LEP and the objectives of the Mixed Use Zone, I am satisfied that the proposal satisfies all with the exception of the specific aim for environmental heritage (clause 3(e) and the maintenance of commercial space (zone objective).
The planners agree, that with the amendments made to the proposal through the deletion of part of the rear upper levels, the bulk and scale of the development is acceptable and appropriate to its context. The proposal provides for a diversity of activities and whilst Mr Hoy says there is inadequate commercial floor space, I am satisfied that, with the implementation of the recommended acoustic attenuation treatments, the amenity of adjoining areas would be protected. There is no evidence that the traffic and parking impacts of the development are not acceptable despite the parking provided being less than that required under SEPPARH. It is within the maximum rate allowed under the DCP.
I address the failure to achieve the objectives for environmental heritage later in this judgment.
With reference to the specific zone objectives, the proposal would add to the range of living opportunities available in the locality, provide employment opportunities with a minor recreational element introduced through thy gym. The conversion of the hall from its currently approved (whilst not presently used on the first floor) to boarding rooms does not maintain existing commercial space.
The applicant has lodged four objections to development standards under SEPP1 however, Mr Staunton, for the applicant, submits that only two are required.
There is no dispute that the development standards for height (clause 29) and building height plane (clause 30) are breached. The planning experts agree that the amended plans have addressed the concerns in relation to the height and building height plane and consider the objections to those development standards are well founded. Having regard to the evidence and the three matters described by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827, I am satisfied that the objection to the standards is well founded and the granting of consent to the application would be consistent with the aims of the policy. There are no matters of significance for state or regional environmental planning and the variation, being of a minor extent, achieves the objectives of the control. For that reason, it is appropriate to uphold the SEPP1 objections in relation to the development standards contained in clauses 29 and 30 of the LEP.
The applicant has also lodged an objection to the design controls contained in clause 32(2) of the LEP. These are detailed in [23] and apply to a new building. The building must contain residential and non-residential uses (32(2)(a)), the non-residential component is to be provided at the lower levels of the building and the ground level is not to be used for residential purposes, except access (32(2)(b)). In addition, the residential component of the building is to be provided with an entrance separate from the entrances to the remainder of the building (32(2)(c)) and the building is to be set back above a podium.
The development does not satisfy the provisions of clause 32(2)(b). The applicant argues that the clause does not apply to the application because the clause is inconsistent with the provisions of SEPPARH. Clause 8 of that policy states:
If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.
There is no dispute between the parties that SEPPARH applies to the application and that the Mixed Use zone is an equivalent zone to Zone B4 Mixed Use. Therefore, the provisions of Division 3 of SEPPARH apply. Clause 30(1)(g) is relevant to the issue and states:
(1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following: ...
(g) if the boarding house is on land zoned primarily for commercial purposes, no part of the ground floor of the boarding house that fronts a street will be used for residential purposes unless another environmental planning instrument permits such a use,
There are no other provisions in SEPPARH that control the amount or location of commercial floor space that can/must be provided within a development. It is necessary to determine whether the provisions of clause 30(1)(g) apply to the application. That requires a determination of whether the land in the Mixed Use Zone under the LEP is land zoned primarily for commercial purposes. It is agreed between the parties that it is not however, I must be satisfied that this is the case.
In this regard, I firstly refer to the objectives of the zone. The are detailed at [21] and provide for a diverse range of living, employment, recreational and social opportunities ..... to create interesting and vibrant neighbourhood centres with safe, high quality urban environments with residential amenity......allow for residential development in mixed use buildings with non-residential uses at the lower levels and residential above and to promote affordable housing.
The objectives contemplate a range of uses other than commercial uses with only the lower levels of buildings required for non-residential uses. Further guidance is provided in Division 5. It is apparent from the objectives and the controls contained within that division that a range of uses is envisaged and, in particular, the FSR controls, which provide for a high proportion of a building to be residential. In the case of the site, there is a minimum FSR of 0.5:1 required for commercial space but no limit for the extent of residential floor space, other than that established by the height and building height plane development standards and the provisions of clause 32(2)(b). Accordingly, a building with a greater proportion of residential floor space than non-residential floor space is contemplated under the controls. For these reasons, I conclude that site is not land primarily zoned for commercial purposes.
Having reached that conclusion, the SEPPARH will apply to the application in the event of any inconsistency. As there is no requirement in SEPPARH that controls the location or extent of commercial floor space, the policy prevails and the provisions of clause 32(2)(b) of the LEP do not apply to the application. For that reason there is no need to consider the SEPP1 application to vary that standard. Similarly, there is no need to consider the application to vary the provisions of clause 30(g) of SEPPARH as the site is not land zoned primarily for commercial purposes, if it is a development standard. There is no inconsistency between the LEP and SEPPARH in terms of the requirement of the LEP to retain commercial floor space as the policy does not prevent the development of a boarding house in a building that contains other land uses.
Those provisions of the LEP that are not inconsistent with SEPPARH remain relevant considerations. These include the aims of the plan, objectives of the zone and the provisions of Division 5 for the Mixed Use zone where not inconsistent with SEPPARH as discussed above. In addition, the Part 4 Heritage provisions, which, in accordance with clause 43 prevail over all other provisions of the LEP to the extent of any direct or indirect inconsistancy, must be considered when determining whether or not to grant consent to the application.
The evidence of the heritage experts differs in relation to the significance of the former Masonic Hall. Mr Logan says it is of regional significance and Mr Brooks says that no such grading applies in contemporary statutory heritage management. Mr Logan accepts that items are now classified as either of State or Local significance but says that the significance is at the higher end of local. Mr Brooks says that there are 31 Masonic Halls registered as heritage items in suburban Sydney so considers the significance to be less than that expressed by Mr Logan. The LEP requires me to consider the significance of the item as part of the environmental heritage of North Sydney. In this regard, I prefer the evidence of Mr Logan and accept that it is at the higher end of local significance.
It is a building that is in tact with its internal and external features highly reflective of its original construction. A positive aspect of the proposal is the demolition of the latter additions to the rear of the hall and the retention of the entry foyer. I accept Mr Logan's evidence and consider the interior of the building to be as important as its exterior. That interior is highly in tact. In particular, I agree with Mr Logan that the first floor ceremonial hall should be developed so that it can be read as a whole. The proposal fails to maintain legibility of the interior and has not sufficiently considered the impact of the works on the fabric of the item. I do not accept Mr Brook's view that this is a matter for later consideration. I must have sufficient certainty of the extent of the works proposed in order that I can assess the impact of those works on the heritage significance of that work.
On the available evidence, I consider that the proposal will adversely impact the heritage significance of the ceremonial hall and that no consideration had been given to the location of walls, openings and servicing and the impact of that work in the initial design of the proposal. It was apparent that the continual provision of additional detail during the hearing demonstrated the lack of consideration of the important detailing within the building and the need to maintain the openness of the hall areas. The extent of work required will not allow the significance of the building to be read and I accept Mr Logan's evidence that the significance spatial and decorative qualities of the interior should be conserved. The design fails to achieve this through the vertical and horizontal subdivision of the important open spaces and therefore does not meet the aims of the LEP or its heritage provisions. The fact that the works proposed may be reversible does not alter my consideration. For that reason, consent to the application should not be granted. The subdivision also leads to unacceptable internal amenity impacts, in particular the reduced floor to ceiling heights within the boarding rooms.
For completeness, I consider the other contentions. I have already addressed contentions B1, B3, B4 B5 and B6. Contentions B8, B9, B10 and B11 were either agreed between the experts or not pressed by the council.
I accept the expert evidence that the changes made to the design of the new building through deletion of the upper level units would be appropriate in terms of bulk and scale and also not adversely impact on the heritage significance of 36 West Street.
The issue of whether the development is affordable housing is not a matter that is required under SEPPARH. Those requirements are for other forms of development permitted under the policy and would not be a reason to refuse consent. I am satisfied that the market would determine what rental is reasonable for the location and that it is not necessary to impose any conditions that set the rent to a particular benchmark.
The valuation evidence provided does not lead me to conclude that the development should be allowed. Other options, not necessarily commercial may be appropriate for the hall building.
Having regard to the evidence and issues raised by objectors, I consider that the overshadowing impacts, traffic impacts and parking provision of the amended proposal are acceptable. The concerns regarding privacy and acoustic have been addressed through the provision of screens however this results in a poor quality living environment and requires restrictions on hours of use of the balcony and communal areas. I agree with Mr Hoy's evidence that the amenity of the boarding rooms is poor.

Conclusion

My assessment of the application against the provisions of SEPPARH, the LEP and DCP leads me to the conclusion that consent should not be granted. The proposal does not achieve the aims of the plan (environmental heritage) and is inconsistent with the zone objective to maintain commercial floor space. Importantly, the development adversely affects the heritage significance of the heritage item, the former Masonic Hall. The development provides poor internal amenity for the boarding rooms, particularly those within the heritage item.
The Orders of the Court are:
(1)The appeal is dismissed.
(2)Development Application DA 447/2012 for alterations and additions to an existing building at 317 Pacific Highway, North Sydney to facilitate its use as a boarding house is refused consent.
(3)The exhibits, other than exhibits A, B, C, D, J, L and 8, may be returned.
___________________
Sue Morris
Commissioner of the Court
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Case Title:	Modog Pty Limited v North Sydney Council
Medium Neutral Citation:	[2013] NSWLEC 1134
Hearing Date(s):	26-28 June 2013
Decision Date:	24 July 2013
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal dismissed
Catchwords:	DEVELOPMENT APPLICATION: Boarding house, heritage impacts, amenity impacts,
Legislation Cited:	North Sydney Local Environmental Plan 2001; State Environmental Planning Policy - (Affordable Rental Housing) 2009; State Environmental Planning Policy No. 1 - Development Standards; State Environmental Planning Policy (Infrastructure) 2007
Cases Cited:	Wehbe v Pittwater Council [2007] NSWLEC 827
Texts Cited:	North Sydney Development Control Plan 2002
Category:	Principal judgment
Parties:	Modog Pty Limited (Applicant) North Sydney Council (Respondent)
Representation
- Counsel:	Mr M Staunton (Applicant)
- Solicitors:	Mr T Sattler Sattler & Associates Pty Ltd (Applicant) Mr J Cole HWL Ebsworth Lawyers (Respondent)
File Number(s):	10256 of 2013