Perry v Sydney CC
[2006] NSWLEC 29
•19 January 2006
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION: Perry v Sydney CC [2006] NSWLEC 29
PARTIES:
APPLICANT
Richard John Perry
RESPONDENT
Sydney City Council
CASE NUMBER: 10959 of 2005
CATCH WORDS: Development Application
LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
South Sydney Local Environmental Plan 1998
South Sydney Developmental Control Plan 1997
South Sydney Heritage Conservation and Development Control Plan 1998
CORAM: Hoffman C
DATES OF HEARING: 19/01/2006
EX TEMPORE DATE: 19/01/2006
LEGAL REPRESENTATIVES
APPLICANT
Mr Zylber, agent
RESPONDENT
Mr P. Whitford, solicitor
of Maddocks Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHoffman C
19 January 2006
10959 of 2005 Richard John Perry v
Sydney City Council
JUDGMENT
This was a Class One Appeal No 10959 of 2005 between R J Perry v Sydney City Council in regard to the refusal of an application to locate a new room addition to a penthouse unit on an existing roof deck at No. 2-12 Smail Street Ultimo. The site has main frontage to Smail Street and a side frontage to Mountain Lane. The site contains a seven storey residential building. The building has a distinct five storey street wall with a strong parapet and the sixth and seventh storeys are set back from the street with open terraces in front.
The envelope of the building, which appears to be an old warehouse building, and the strong parapet line, is compatible within the context created by adjoining buildings nearby that appear to be of similar age and similar size.
The consent for the subject building was approved on 4 August 1997 allowing for the conversion of the building into 59 units with two levels of carparking and the erection of an extra floor and roof deck. The site has a total area of 978 sq m, it is Zoned No. 10 (Mixed Uses) in the South Sydney Local Environmental Plan 1998 and under Draft Amendment No 9 the area is proposed to become a conservation area. There is a mix of residential and commercial uses in the locality.
The applicable planning instruments are the South Sydney Local Environmental Plan 1998, the conservation area under South Sydney Local Environmental Plan 1998 Draft Amendment No 9, South Sydney Developmental Control Plan 1997 and the South Sydney Heritage Conservation and Development Control Plan 1998.
The original plans refused by Council were drawing Nos 832U, sheets one and two by N E Boyarcioglu, architectural draughtsman.
The Council, since the refusal, has negotiated with the applicant and new plans were prepared. They were initially tendered at the commencement of this hearing as Exhibit A along with consent orders. The parties had come to agreement that the amended plans satisfied the issues which were:
Issue 1 -Building Envelope
1.1.The proposed development does not comply with the building envelope controls contained in the South Sydney Development Control Plan 1997: Urban Design. In particular:
1.1.1.The proposal is inconsistent with Part E 2.1, 2.2, 2.3; and Part F 2.2 of the South Sydney Development Control Plan 1997: Urban Design.
1.2.The building envelope control for a 20m wide street is a height of 21.6m and a 36 degree building envelope control line. The addition would protrude beyond this line and contributes to the bulk of the building on the top floor, an area which traditionally should be recessive by providing setbacks.
1.3.The maximum height limit for the site is 18m. The proposed development seeks a height of 24.5. The proposed development is 36% over the maximum height control.
1.4.The maximum Floor Space Ratio (FSR) for the site is 3:1. The proposed development will have an FSR of 4.2:1. This exceeds the control by 40%.
Issue 2 -Streetscape
2.1.The proposed development does not comply with the streetscape controls contained in the South Sydney LEP 1998 and South Sydney Development Control Plan 1997: Urban Design. In particular:
(a)The proposal is not consistent with cl 21(1)(d); and 28(1)(a), (c) and (f) of the South Sydney LEP 1998;
(b)The proposal is inconsistent with Part B.2; and Part E 2.4 and 2.5 of the South Sydney Development Control Plan 1997: Urban Design.
2.2.The proposed development is considered to be an inappropriate response to the site given the form of the surrounding development. The addition will be visible from the street and will look like an ad-hoc addition.
Issue 3 -Conservation
3.1. The proposed development does not comply with the conservation controls contained in the South Sydney LEP 1998, South Sydney Development Control Plan 1997: Urban Design and South Sydney (Heritage Conservation) DCP 1998. In particular:
(a) The proposal is not consistent with cl 23A(2)(a), (d) of the -: South Sydney LEP 1998;
(b) The proposal is inconsistent with Part E3 of the South Sydney Development Control Plan 1997: Urban Design;
(c) The proposal is inconsistent with Part 4.2 of the South Sydney (Heritage Conservation) DCP 1998.
3.2 The addition is inconsistent with the height, scale and appearance of the subject building and other buildings in the immediate vicinity of the subject site. It will disrupt the strong established parapet line by encroaching into the top floor and setback area.
Issue 4 - Residential Amenity -Sense of enclosure, surveillance and reduction in private open space
4.1 The proposed development does not comply with the amenity controls contained in the South Sydney LEP 1998 and South Sydney Development Control Plan 1997: Urban Design. In particular:
4.1.1 The proposal is inconsistent with cl 21(1)(g) of the South Sydney LEP 1998.
4.1.2 The proposal is inconsistent with Part F 2.3 and 2.4 of the South Sydney Development Control Plan 1997: Urban Design.
4.2 The proposed development will block the view of the adjoining apartment to the west of the subject apartment, reduce passive surveillance from the terrace and reduce the existing amount of private open space.
Issue 5 - Precedent for future development
5.1 The proposed ad-hoc addition to the top of buildings is unlikely to result in good design. In this regard, an addition which does not comply with the controls for building envelope, streetscape, conservation and residential amenity would set an undesirable precedent for future development if consent was granted.
Issue 6 - The public interest
6.1 The proposed development is inconsistent with many of the relevant controls including building envelope, streetscape, heritage conservation and residential amenity. In this regard it is considered that the or proposal will have detrimental effects on the public interest and is inconsistent with s 79C (1) (e) of the Environmental Planning and Assessment Act 1979.
The amended plans in exhibit A, were drawings 832U/R1, sheets one and two by R and M Architectural Draftsman, Broadway. In considering those plans that were the subject of the consent orders, I noted errors and inconsistencies in the drawings namely:
(1)The roof of the new room was written to be a three degree pitch and it was drawn at more than eight degrees.
(2)The new room was shown in the section drawing as over 4 m wide but on the plan it measured only 3 m wide.
(3)The wall height to the eave dimension was said to be 2.6 m but actually scaled 3 m.
(4)The exhibit C montage showed the same eave at about half the height of the adjoining stairwell on the top floor, whereas the elevation showed that the eave was about six-sevenths of the height of the stair wall. As a result it appeared it would be far more visible from the street than shown in the montage.
(5)The new walls to the proposed room were said to be on the plans, timber stud walls, but they were shown rendered in exhibit A.
(6)There was an unknown object shown above each of the windows on the elevations. It was speculated by the applicant that they represented boxes to contain extendable canvas blinds over each window to which the Council’s representative objected.
(7)The south wall of the new room showed on elevation only 200 mm from the balustrade outside the wall whereas the plan required a 700 mm setback.
(8)The east wall of the new room showed on elevation about 400 mm from the balustrade and the condition required it to be 700 mm.
These errors indicated that the plans were not worthy of consent and the parties sought an adjournment to correct them and reconsider. On resumption of the hearing updated plans were tendered in exhibit D along with an updated photomontage, which corrected the previous errors and inconsistencies.
It also might be noted that the design of the proposal was quite different to the original plans that the Council refused and the negotiations carried out by the Council staff appeared to resolve satisfactorily all the issues. I note that this minor addition does not cause the major non-compliances with envelope, height and floor space ratios. They had apparently been considered in the original consent for the building due to the context of many other similar existing buildings in the locality. The subject apartment is 2-storey and has a commodious deck area outside its living room on the lower level. The loss of this deck on the bedroom level is of little consequence to the private open space of the unit.
Having considered the new plans, and the updated consent orders in Exhibit 2, I find no reason sufficient to refuse the request of the parties to grant those consent orders. I return previous plans filed on 6 October 2005, 30 November 2005 and the photographs also filed on 30 November 2005.
Therefore the orders of the Court by consent are:
(1)The appeal is upheld.
(2)Development application No D/2004/400 proposing enclosure of part of the private upper level terrace for use as a home office at unit 505/2-12 Smail Street Ultimo is determined by the granting of consent subject to the conditions in annexure A.
(3)The exhibits are returned to the parties except for exhibits 2 and D.
Note: by consent there is no order as to costs.
___________________
K G Hoffman
Commissioner of the Court
Rjs/ljr
0
0
4