Practec Developments (Aust) No.9 Pty Ltd v Council of the City of Sydney

Case •

[2021] NSWLEC 1451

•

06 August 2021

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Practec Developments (Aust) No.9 Pty Ltd v Council of the City of Sydney [2021] NSWLEC 1451
Hearing dates: 19 – 20 May 2021
Date of orders: 6 August 2021
Decision date: 06 August 2021
Jurisdiction:Class 1
Before: Walsh C
Decision:

The Court orders that:

(1)   The appeal is dismissed.

(2)   Development application D/2020/244 (DA) for alterations and additions to six terraces for use as a hotel is refused.

(3)   The following exhibits are returned: 2-7, E and G.

Catchwords:

DEVELOPMENT APPLICATION – hotel – alterations and additions to terrace housing – heritage conservation – neighbour amenity impact

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Sydney Local Environmental Plan 2012, cll 4.3, 4.4, 6.21

Cases Cited:

Anglican Community Services v Blacktown City Council [2020] NSWLEC 1031

Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276

Blackmore Design Group Pty Ltd v Manly Council [2014] NSWLEC 1180

Dougruby Pty Ltd v Wingecarribee Shire Council [2004] NSWLEC 192

Gowing Bros Ltd v Coffs Harbour City Council [2020] NSWLEC 1027

Hornsby Shire Council v Malcolm (1986) 60 LGRA 429

Meriton Properties Management Pty Ltd v Sydney City Council (2004) LGERA 144; [2004] NSWLEC 313

MoDog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 443; [2000] NSWLEC 180

Parsonage v Ku-ring-gai Council (2004) 139 LGERA 354; [2004] NSWLEC 347

Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191

Rebel MH Neutral Bay Pty Ltd v North Sydney Council (2018) 241 LGERA 107; [2018] NSWLEC 191

Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472

Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140

Veloshin v Randwick City Council [2007] NSWLEC 428

Woollahra Municipal Council v SJD DB2 Pty Ltd [2020] NSWLEC 115

Texts Cited:

Macquarie Dictionary

Sydney Development Control Plan 2012

Category:Principal judgment
Parties: Practec Developments (Aust) Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)
Representation:

Counsel:
M Staunton (Applicant)
A Hemmings (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
The Council of the City of Sydney (Respondent)
File Number(s): 2020/170977
Publication restriction: No

Judgment

  1. COMMISSIONER: This is appeal is brought by Practec Developments (Aust) Pty Ltd (Applicant) under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Council of the City of Sydney (Council) of a development application it references as D/2020/244 (DA). The DA is for alterations and additions to six terraces for use as a hotel.

The site and setting

  1. I rely on Council’s Statement of Facts and Contentions (Ex 1), for much of the material in this and the following two descriptive sections.

  2. The site is described as 24-34 Hardie Street Darlinghurst, and comprises Lots 1-3 DP 529495, Lot 1 DP 840241, Lot 1 DP 266280, and Lot 1 DP 997070. The combined site area is 637.1 m2. The site has a primary street frontage to Hardie Street and a secondary street frontage (to the rear) to a laneway called Hayden Place.

  3. The six terraces occupy two separate but abutting terrace rows, of three terraces each. Hardie Street slopes a little from north to south and the two terrace rows provide for a break in levels. 28-34 Hardie Street are two storeys to the rear, with 24-26 Hardie Street being 3 storeys as viewed from Hayden Place. All terraces have rear courtyards, some with trees. Street trees are prominent in Hardie Street. Haydon Place is narrow with limitations to access for motor vehicles.

  4. The surrounding area is predominantly residential with some commercial/light industrial land uses. While terrace housing is prominent, there is a regular occurrence of interwar residential flat buildings. On the opposite side of Hardie Street is a 4 storey residential flat building (381-383 Victoria Street) and an 8 storey residential flat building with ground floor mechanics’ workshop (134-136A Darlinghurst Road). On the opposite side of Hayden Place are a mix of residential and commercial uses contained mostly in two storey terraces fronting Victoria Street, some subject to recent redevelopment proposals.

The proposal

  1. The proposal provides for demolition of much of the rear or eastern half of the terraces including the rear wings. Removal of a number of existing trees is also proposed.

  2. New construction would involve a new excavated (partial) basement level providing for various services and amenities, including waste storage. The ground level would comprise a foyer, lounge, 14 hotel rooms and a bin collection staging area concerned with the logistics of waste management. The first floor would comprise 8 hotel rooms, the second floor – 11 hotel rooms, the third floor – 12 hotel rooms, and the fourth floor – 12 hotel rooms.

  3. There would be juliette balconies to the upper three floors. Various works to the front façade would be undertaken including new cast iron lacework and door detailing. There would be a need for a fire hydrant booster which would be located within the front courtyard of 34 Hardie Street. There would be a drop off/pick up zone near the entry in Hardie Street.

  4. Operationally there would be a maximum of 131 guests, with reception open between 7am and 10pm. Staffing would be 1 manager/1 staff during ‘normal working hours’. There would be contract cleaning staff. Guests would stay for a maximum of 3 months.

Introduction to planning provisions

  1. The site is located within the B4 – Mixed Use zone of Sydney Local Environmental Plan 2012 (SLEP). The relevant zone objectives are:

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To ensure uses support the viability of centres.

  1. The proposal is permissible with consent in the zone.

  2. The key numerical controls within SLEP of relevance are as follows:

  1. Floor space ratio (cl 4.4): The site is subject to a Floor Space Ratio (FSR) control of 3:1 under the SLEP. The proposed FSR is 2.98:1 (Ex C DA08.01 Rev F)

  2. Height in metres (cl 4.3): The site is subject to a height control of 18 m under the SLEP. The proposal sits well under this control, as described in each of the elevation and section drawings (Ex C).

  1. The site is located within the Oxford Street (Darlinghurst Road) and Victoria Street Heritage Conservation Area (HCA) identified as item C12 (local significance) at Schedule 5 to SLEP.

  2. Under cl 6.21 of SLEP, development consent must not be granted to the proposal unless I am of the opinion that it “exhibits design excellence”. A series of matters which I am required to take into account on that topic are listed at subcl 6.21(4).

  3. Under Sydney Development Control Plan 2012 (SDCP) all buildings within the site are identified as contributory buildings within the heritage conservation area. Other SDCP controls of relevance are raised in the consideration of the issues and evidence.

Issues

  1. The key issues pressed by Council at the time of the hearing can be categorised into three and involve some overlap. The first is concerned with heritage conservation. The other two issues I use for this categorisation are concerned with physical and visual impacts (using the well-known breakdown adopted in the oft-cited authority Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 at [24] (Project Venture)).

  2. Below I introduce them with selected explanatory details and cross referencing to the listing of contentions as per Ex 1. I would note here that while listed as an individual contention in Ex 1, cl 6.21 of SLEP relating to design excellence, is a consideration in each of the issues nominated. I make findings on this issue in my conclusions. In this judgment there is also a section on “other issues” which considers the remainder of the matters raised.

  1. The first issue is the effect of the proposed development on the heritage significance of the heritage conservation area. This issue relates to Contention 1 (Ex 1).

  2. The second issue considered is “physical impacts”, or the proposals relationship with nearby dwellings. I also note the Applicant’s reference to “constraints on development potential” as a factor cited in Project Venture, this matter is considered here but is relevant to each of the issues. I note here that the bulk of the judgment is concerned with this issue (of physical impacts) which I find to be of most significance to the determination (and in the negative as far as the Applicant is concerned). This issue involves the contentions, listed below:

  • Contention 2.1(a) – concerned with respect to sunlight access, visual bulk and enclosure;

  • Contention 2.2 – which introduces controls relating to building setbacks;

  • Contention 3 – relating to building height which is partly covered in my first nominated issue (heritage) and third issue (visual character), but has some pertinence to amenity impacts (in particular section 4.2.1(2) of SDCP);

  • Contention 5 – which cites direct particulars on amenity impacts.

  1. The third issue considered is “visual character” impacts, with the particular of concern raised in Contention 4.1 (Ex 1) being the proposal’s interface with Hayden Place.

  1. The public submissions opposing the proposal could generally be seen as aligned with the issues nominated above and drawing in general character compatibility concerns. In particular, I will note that during the site inspection, the opportunity was taken to view from the rear area of 36 Hardie Street. There are further details on the objection from the owners of this property in the consideration of “physical impacts”.

  2. The experts providing evidence are introduced in the table below.

Expertise

For

J Askin

Town planning

Applicant

M Girvan

Town planning

Council

R Dickson

Urban design

Applicant

J Presick

Urban design

Council

J Phillips

Heritage

Council

P Misra

Heritage

Applicant

Heritage conservation

Further details on policy provisions

  1. In this instance, cl 5.10(4) of SLEP requires the Court to “consider” the effect of a proposed development on the heritage significance of the HCA.

  2. While more particulars were provided including in regard to the objectives of section 3.9 of SDCP, concerned with heritage overall, the heritage experts provided something of a snapshot of section 3.9.6 of SDCP, concerned with heritage conservation areas generally, suggesting the provisions require (Ex 3 p 3):

“… that development within a heritage conservation area is to be compatible with the surrounding built form and urban pattern. This includes responding sympathetically to the type, siting, form, height, bulk and scale of adjoining or nearby contributory buildings. The control also requires development to respond sympathetically to the interface between the public domain and building alignments and property boundaries.”

  1. The heritage experts agree that the six terraces occupying the site are each contributory buildings (Ex 3 p 3). Section 3.9.7(2)-(4) are among the provisions of SDCP concerned with alterations and additions to contributory buildings, and provide as follows:

“(2) Alterations and additions must not significantly alter the appearance of principal and significant facades of a contributory building, except to remove detracting elements.

(3) Alterations and additions to a contributory building are to:

(a) respect significant original or characteristic built form;

(b) respect significant traditional or characteristic subdivision patterns;

(c) retain significant fabric;

(d) retain, and where possible reinstate, significant features and building elements, including but not limited to original balconies and verandahs, fences, chimneys, joinery and shop front detailing;

(e) remove unsympathetic alterations and additions, including inappropriate building elements;

(f) use appropriate materials, finishes and colours; and

(g) respect the pattern, style and dimensions of original windows and doors.

(4) Where an addition to the building is proposed, significant external elements are to be reinstated.”

  1. I generally agree with the oral evidence of Mr Phillips that the front elevation aspects are the most important consideration here. I think, again in oral evidence, Ms Misra agreed that, given the otherwise planning context (in particular the development standards relating to height and FSR), it was appropriate to give attention to where works can take place with the least impact; and the area of most potential heritage effect relates to the front elevation or the Hardie Street streetscape presentation.

  2. Both experts referenced the heritage inventory to this HCA (Ex 3 Appendix 2) which referenced Hardie Street as follows:

“This is a north-south street that extends from Darlinghurst Road to Burton Street. It comprises two storey Victorian terraces of varying intactness interspersed with three to four storey Inter - war residential flat buildings.

Rating: B”

  1. Mr Phillips disagreed with the above identification of Hardie Street (Ex 3 p 5):

“…In particular the idea that terraces are “interspersed” with inter war flat buildings. Indeed, there is a row of eight terraces but the remainder of the street, the hole (sic) of the western side and the balance of the eastern side consists of buildings of bulk and scale other than terraces.”

  1. Ms Misra provided a structure to the “mixture” of development along Hardie Street’s eastern side in the site environs (Ex 3 p 3)

“The interwar flat buildings are more like bookends to the low scale Victorian built form. The surrounding built form and urban pattern are first and foremost characterised by the terraces on the subject site.”

  1. In regard to streetscape impact, Ms Misra expressed the view that (Ex 3 p 5):

“The skyline of Hardie street is irreversibly altered because the proposal is higher than the existing roof ridge and the chimneys of the terraces. The ability to see the historic terrace roofscape including the chimneys against the sky will be completely lost as evidenced by the applicant’s photomontage in figure 2. The proposal has an unacceptable impact on the setting and views of the contributory terraces from Hardie Street.”

  1. Mr Phillips’ view was more positive, noting that other “larger” and taller built forms were commonly built to the street boundary, whereas (Ex 3 p 7):

“… (the) proposal is respectful of the terraces in that it is set back to towards the rear of the principal roof forms of the terraces which allows the terraces to maintain their strong prominence on Hardie Street.”

  1. More generally Mr Phillips believes (Ex 3 p 5):

“The proposal responds sympathetically to the interface between the public domain and building alignments and property boundaries. It reflects the varied building alignments and maintains the contribution of the terraces to the public domain along Hardie Street. While the boundaries of the terraces are proposed to be consolidated, the overall boundary to the site fits within the historical development pattern of the area.”

  1. There was also disagreement among the experts in regard to the impacts on the “physical integrity” and “intactness” both in regard to the external fabric of these contributory buildings and the extent of internal demolition.

Consideration

  1. It might be thought that the FSR and building height controls which affect the terraces, and some nearby sites, are merely opening the door for redevelopment of some of the other nearby buildings less valued in heritage terms. This does not follow, for me, given the “fine grained” breakdown adopted in SLEP in regard to localised, sometimes almost site specific, FSR and building height controls (eg 134-136A Hardie Street, directly across from the site, and see Figure 1and Figure 2 below).

  2. Therefore, I agree with the Applicant’s closing submission, that SLEP’s height and FSR controls need to be seen as being quite conscious of the HCA status, including in regard to the existing terrace forms. When I consider the future character which might be gleaned from the planning controls, it is one which retains the terrace frontages, as the most important contributing heritage-related elements, with a larger building massing to the rear (responsive to the SLEP numerical standards). This scenario would I think almost inevitably detract from the character and significance of the existing buildings in heritage conservation terms, certainly from the external presentation perspective; as the terrace roofs and chimneys would no longer skyline, as put by Ms Misra, and would be to an extent dominated by the five storey building massing.

  3. There are also detracting elements with the proposal even in the terrace frontages (including the fire hydrant booster and changes to door widths to ensure access for persons with disability), and also I agree with Ms Misra in regard to the misalignment between rhythm of the fenestration of the visible levels and the terraces immediately in front. There are also what might be thought of as restorative elements with new cast iron lacework and door detailing. Using the notion of “viewing the proposal in the same way that a member of the public would” (Project Venture at [31]), one would consider the immediate site context, including the streetscape setting with its considerable presence of street trees with their visual filtering effect, and the tall building forms, “bookending” and otherwise surrounding. In my opinion, and in light of this street context, the loss of this fabric does not detract to the extent which would stop these six terrace building forms as being read as such.

  4. Briefly, in regard to the effect on Hayden Place, I note and agree with Ms Misra’s comments (Ex 3 p 5) that the rear view of the terrace roofs, rear wings and original chimneys are all highly visible from this lane. However, I am not concerned about this impact, again in light of the height and FSR controls, but also given the low intensity of use of this lane (discussed further in considering the third issue below) and noting the “C” rating in the HCA statement of significance (Ex 3 App 2).

  5. There is no doubt that the proposal would have a detrimental effect in heritage conservation terms, and be at odds with elements of sections 3.9.6 and 3.9.7 of SDCP. However, the legibility of the terrace forms would be retained and adverse impacts would not be to an extent that the site would not still form part of the collective heritage significance of the HCA.

Physical impacts

Introduction

  1. Council contends the proposed development would bring unacceptable physical or amenity impacts on neighbouring residential properties. The massing of the building would, according to Council, bring concerns in regard to visual bulk (a sense of “enclosure” is also referenced) and unreasonable sunlight loss.

  2. The property of most concern is that abutting to the south (36 Hardie Street), the rear courtyard of which was inspected during the site inspection. I also note the oral and relevant written submissions in regard to the perceived impact on this property (eg Ex 2 p 548 et seq). The objections raised in these submissions reflected the concerns raised by Council and Council’s experts, albeit more descriptively comparing the amenity currently enjoyed and concerns in regard to perceived sunlight loss and the visual massing of the proposal as experienced from the rear courtyard. There was no indication that the objectors agreed with Council’s suggestion on an acceptable side boundary setback configuration. These objectors also raised wider concerns about the proposal being at odds with the local character and their lifestyle within this area.

  3. There were also concerns from Council about reduced sunlight access for particularly one of the central apartments within the apartment block at 40 Hardie Street, as current sunlight accessed via a lightwell would be reduced. It was the loss of morning sun that was the concern. Visual privacy concerns across Hayden Place were addressed by conditions and amended plans.

Further details on policy provisions

Height and FSR standards

  1. The significant differentiation in regard to height and FSR development standards in the site surrounds warrants attention. Figure 1 shows the height in storeys controls applying to the site (which I have highlighted in white dashed line) under SDCP as provided in Ex 4 (p 26). The maximum building height controls under SLEP embody similar differentiation. Existing buildings on the particular parcels in the site environs somewhat reflect the height controls (Ex 1 pars 11-14). A notable exception is the two and three storey terrace housing on the eastern side of Hardie Street including the six terraces occupying the site. I also mention the three storey interwar building to the south of the terraces and the two storey building south again on the Hayden Place corner.

Figure 1- Excerpt from height in storeys under SDCP which is generally reflective of SLEP building height controls (Source: Fig 4.4 Ex 4). The site is highlighted with dashed white line.

Figure 2 – Excerpt from FSR map under SLEP. The site is highlighted with dashed white line.

  1. The FSR controls are also differentiated. An excerpt from the relevant map from SLEP is reproduced at Figure 2, with V1 marked land (such as the subject site) having an FSR maximum of 3:1, S2 land 1.75:1, U1 2.5:1, T 2:1 and Z 5:1. Again these FSR controls reflect somewhat existing occupations, with the terrace housing on the eastern side of Hardie Street a notable exception.

Locality statement

  1. There is reference to the applicable Darlinghurst West Locality Statement (Locality Statement) under SDCP in the contentions and expert evidence. The Locality Statement is a direct consideration and Council sees the desired neighbourhood character as “defined” in the Locality Statement (Ex 1 par 37). Below I reproduce relevant parts of the Locality Statement and some of the “principles” which may have relevance (SDCP section 2.4.12):

“Darlinghurst West will continue to be a vibrant and diverse area, energised by its unique café and restaurant opportunities and the quieter residential areas and heritage buildings within a landscaped setting.

The main activity centre for this area is the existing Darlinghurst Road/Victoria Street retail spines between Burton and William Streets. These retail spines will reinforce the predominant built form character of buildings with vertical articulation that reflects the small lot subdivision pattern and low scale streetwall heights with awnings.

The built form is characterised by variety of residential buildings, consistent streetscape and a strong presence of interwar buildings. The residential precinct at the north of the area (Kirketon Road, Farrell Avenue and Clapton Place) is to maintain its predominant character of taller buildings in a landscape setting. New infill buildings in terrace housing areas are to maintain the predominant building setbacks, streetwall heights and alignments.

Principles

(a) Development must achieve and satisfy the outcomes expressed in the character statement and supporting principles.

(b) Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes.

(c) Maintain the vertically articulated small lot pattern and low street wall height along Victoria Street. (nothing on the laneway, except above)

…

(e) Maintain the predominant street setback and alignment of rows and areas with a consistent character.”

Building setbacks

  1. Relevant controls are at section 4.2.2 of SDCP. The building setback objectives are:

“(a) Ensure development:

(i) is generally consistent with existing, adjacent patterns of building

setbacks on the street; and

(ii) maintains the setting of heritage items and is consistent with building

setbacks in heritage conservation areas.

(b) Establish the street frontage setback of the upper levels of residential flat

buildings, and commercial and retail buildings.

(c) Encourage new building setbacks where appropriate to reinforce the areas desired future character.”

  1. In regard to controls, of significance is subclause 4.2.2.1(3) of the SDCP which provides:

“The rear setback and alignment is to be consistent with adjoining buildings.

When the setback or alignment varies, either the adjacent or average rear

setback or alignment is to be adopted.”

Building height

  1. Section 4.2.1.1 of SDCP is concerned with building height in storeys. The objective and provisions of relevance to the amenity topic are reproduced below:

“Objective

(a) Ensure the height in storeys and street frontage height in storeys reinforces the existing or future neighbourhood character.

Provisions

(1) Development must not exceed the maximum number of storeys as shown in the Building height in storeys map.

(2) The maximum may only be achieved where it can be demonstrated that the proposed development:

(a) reinforces the neighbourhood character;

(b) is consistent with the scale and form of surrounding buildings in heritage conservation areas; and

(c) does not detract from the character and significance of the existing building.”

  1. As mentioned, the site is subject to a five storey height limit under the height in storeys map, but the point for Council is the provisions of subclause (2) which suggests a conditionality to the achievement of this five storey control. The LEP’s height of buildings control can of course not be forgotten here.

Solar access

  1. Under the heading “amenity”, section 4.2.3 of SDCP considers a number of matters, one of which is solar access. The objective of section 4.2.3, applying to the general topic of amenity, is as follows:

“Ensure that residential amenity is enhanced with landscaping, private and common open space, sun access, ventilation and acoustic privacy.”

  1. The provisions relating to solar access are at section 4.2.3.1 and are reproduced relevantly as follows:

“(2) Proposed apartments in a development and neighbouring developments must achieve a minimum of 2 hours direct sunlight between 9am and 3pm on 21 June onto at least 1sqm of living room windows and a minimum 50% of the required minimum area of private open space area.

Note: This provision applies to at least 70% of the apartments in a development (in accordance with the requirements of the NSW Residential Flat Design Code 2002).

(3) New development must not create any additional overshadowing onto a neighbouring dwelling where that dwelling currently receives less than 2 hours direct sunlight to habitable rooms and 50% of the private open space between 9am and 3pm on 21 June.”

Evidence

  1. Council believes there is a policy non-compliance in terms of solar access and rear setback, but also makes a suggestion that an improved design would increase the side setback of the proposal for the higher elements; this as a means of reducing bulk and scale perceptions. This highlights the context specific interconnections among those development controls which have a relationship to physical impacts. In regard to the evidence, I will start with solar access and move onto setback and building height evidence. But, as will be seen in the following section, there are limitations to considering the topics as individual “line items”.

  2. On solar access, Council’s experts say in regard to 36 Hardie Street (Ex 4 par 133):

“There is a four hour period between 9am and 1pm at midwinter that 36 Hardie Street currently received direct solar access to its private open space area. The proposal eliminates all solar access except for a small amount that is retained at 10am. It would be possible to modify the building to retain more solar access as follows:

a. Between 9am and 10am setting back the building from the south eastern corner of the site would allow solar access to be maintained.

b. Between 10am and 11am setting back a larger portion of the building from the south eastern corner of the site would allow solar access to be maintained.

c. Between 11am and 1pm it would be difficult to retain any direct solar access with a five storey development given the orientation of the site.”

  1. An analysis of the impacts on certain of the studio apartments at 40 Hardie Street is provided by Council’s experts. A central lightwell perhaps “designed-in” to provide for daylight and sunlight access to the living areas of central apartments on the upper two floors, including providing for certain limited solar access during mid-winter. Council says (Ex 4 par 138):

“The overshadowing impacts at 10am to the middle level of the eastern of the centrally located apartment of 40 Hardie Street result in less than 1 hour of direct solar access at midwinter being maintained which is non-compliant with the DCP.”

  1. It is suggested that the “Sun Eye” diagrams show it is the south eastern corner of the upper levels of the proposal which is causing the relevant overshadowing impact and that “it would be possible to retain solar access to this apartment at 10am whilst still achieving a significant redevelopment of the site, and without reducing the number of storeys” (ibid).

  2. The Applicant’s experts did not disagree with Council in regard to the particulars of impact but highlighted the vulnerability of the internal apartments at 40 Hardie Street (to redevelopment of 36 or 38 Hardie Street). Reference was also made to the Sun Eye diagram set which showed that even two and three storey development would have similar overshadowing impacts to the proposal. This also applied to 36 Hardie Street.

  3. Building height and side setback matters are closely interconnected for Council’s experts. It is argued that the proposal does not meet the prequalification indicated in section 4.2.1.1(2) of SDCP in that (Ex 4 par 79-80):

“79. The proposed 5 storey development does not reinforce the existing or future neighbourhood character which is inconsistent with the objective (a) and provision (a) of Clause 4.2.1.1(2) of the DCP. The desired neighbourhood character is defined in the Darlinghurst West locality statement. The principles include that:

d. Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes.

80. The proposed 5 storey development is not consistent with the scale and form of surrounding buildings in the heritage conservation area and is inconsistent with provision (b) of Clause 4.2.1.1(2) for reasons discussed by the Heritage experts in relation to the Heritage contention.”

  1. Ms Askin and Mr Dickson emphasise, in regard to building height in storeys, the fact of the retention of the street front two storey presentation, with the taller building at the rear, to suggest the proposal does reinforce existing and future neighbourhood character and the Locality Statement and references consistency with the various numerical controls. Mr Dickson notes the full height building breaks along side and rear boundaries to modulate mass, and material consistencies. Relevant here and of wider relevance, Mr Dickson believes that “larger scale buildings within the visual catchment exist in harmony with different building types within the visual catchment” (Ex 4 par 69).

  2. Ms Askin points to the upper storey setback to 36 Hardie Street of 1.8m, provided in the design, and says the bulk as presented to 36 Hardie St is “as envisaged in the controls, being 5 storeys” (Ex par 22), that the proposed rear setback is “consistent with the predominant nil boundary setbacks along Hardie Lane and follows the predominant patterns which is up to the side boundaries” (Ex 4 par 46) and more generally that “the bulk and scale of the proposal is consistent with the controls and therefore is the desired future character for the eastern side of Hardie Street” (Ex 4 par 60).

  3. Turning to the rear setback, Mr Dickson highlights the fact that there is a rear setback proposed and introduces a calculation of the existing rear setback of 2m (Ex 4 pars 48-50):

“48. Rear setbacks on lots with a primary frontage to Hardie Street and rear frontage to Hayden Place are as follows:

a. the rear setback of terraces on the site vary between (approximately) 4.5m-8m

b. No. 36 has a rear setback of (approximately) 8m

c. No. 38, 40 and 42 have a 0m rear setback to Hayden Place

49. The proposal extends to the rear boundary for the first 2 storeys and then provides a 627mm upper level setback from podium level for the next 3 storeys.

50. To apply provision (3) of Clause 4.2.2.1 ‘Setbacks’, the average rear setback is calculated as 2m.”

  1. While noting a numerical non-compliance, Mr Dickson believed the proposal satisfies the SDCP objective relating to rear setback at section 4.2.2(a). While his explanation is further particularised (and considered below) he cites three reasons as follows (Ex 4 par 51):

“a. The proposed building form is appropriate in the context the site, as discussed in my assessment against the height and bulk planning principle above (sic).

b. The proposal complies with the height of buildings in storeys control and therefore is consistent with the maximum overshadowing impacts anticipated by the height controls for the site.

c. The proposal does not adversely impact the setting of nearby heritage items and is consistent with the setbacks of neighbouring building forms.”

  1. In regard to item “a” in the quote from Mr Dickson immediately above, I note he is referring to the Court’s planning principle sourced from the findings of Senior Commissioner Roseth in Veloshin v Randwick City Council [2007] NSWLEC 428 (Veloshin). I will examine Mr Dickson’s reasoning in regard to Veloshin when rounding off the consideration of this issue.

  2. In regard to side setbacks, Mr Dickson noted that there are no numerical standards in SDCP and suggested that attention (and the “onus”) therefore goes to the objectives to section 4.2.2 which he believes are generally satisfied (Ex 4 pars 62-67).

  3. Council’s experts used Figure 3 (below), which was claimed to represent existing rear setbacks to Hayden Place, and calculated the average rear setback along Hayden Place’s western boundary as 3.95m. Figure 3 was not disputed of itself, although in oral evidence Mr Girvan also queried whether what appeared to be a light carport roof structure over the rear of 38 Hardie Street should mean adoption of a zero setback figure is reasonable for that property. That is, that the main building does not go to the rear boundary.

Figure 3 - Representation of building setbacks to Hayden Place (Source Ex 4 Fig 2.6 p 15)

  1. Otherwise, Council’s experts did not agree that the visual bulk and enclosure impacts are consistent with impacts that may be reasonably expected under the controls. It is argued (Ex 4 pars 54-55):

“The massing could be redistributed to reduce the impacts, such as relocating floor space within the existing volume of the attic roof form and providing traditional front dormer windows.

…

… one cannot assume they can achieve the maximum envelope controls across the whole of the rear of the site, irrespective of impacts. As a result of the insensitively sited addition, the proposal has an unreasonable overbearing impact on 36 Hardie Street. This impact could easily be ameliorated with a greater setback to the shared boundary, as demonstrated in Figures 2.2 and 2.3 above.”

  1. In Figures 2.2 and 2.3 in Ex 4, Council’s experts presented alternatives which involved a 3.42 m and 4.4 m side setback for the upper levels (rather than the 1.8 m as proposed), which it suggested would present a more acceptable building bulk to 36 Hardie Street, with the 4.4 m setback representing a satisfactory outcome.

  2. Mr Dickson felt there was an exaggeration of the visual impact upon the residents from the rear courtyard of 36 Hardie Street presented in Council’s modelling work, in that the wall massing was only noticeable when one looks up. So when not looking up (“craning necks” was, I believe, used in the Applicant’s closing) there would be little difference in visual perception. Mr Dickson believed the key point was whether what was proposed was consistent with the neighbourhood character, and in this locale of mixed building heights and where there was compliance with development controls, it was believed to be so.

  3. Ms Askin saw these impositions as unreasonable mindful of development envisaged by the controls (Ex 4 pars 23-26):

“23. The 4.4m setback is not allowing for any development on the immediately adjoining site, which is also subject to a 5 storey height control.

24. The 3.42m setback is only allowing for minor development within the immediately adjoining site, which as outlined above, is also subject to a 5 storey height control.

25. The proposal provides a setback of 1.8m from the southern boundary, which is regarded as a suitable balance between providing visual relief to the adjoining property and developing the site as envisaged by the controls.

26. The height proposed is below the 15m (sic) statutory height control and consistent with the number of storeys control in the DCP applicable to all the subject sites. Therefore, this is a permissible and compliant development and is a development that is consistent with the strategic direction for the locality, of which varying height controls have been identified.”

  1. The design excellence requirements of SLEP were referenced by Council’s experts. Among other items, the experts argue that the proposal fails to exhibit design excellence in addressing the following provisions to which I must have regard (Ex 4 pars 191 and 193): (1) cl 6.21(4)(d)(v) of SLEP in regard to “the bulk, massing and modulation of buildings” and (2) cl 6.21(4)(d)(vii) in regard to “environmental impacts, such as … overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity”.

  2. Mr Dickson argued the proposal satisfies design excellence provisions. Mr Dickson referred to his arguments on the proposal satisfying Court’s planning principle in regard to height and bulk (Veloshin at [32]-[33]) which he believed demonstrated the proposal was appropriate in the context of the site and “consistent with the desired character derived from the planning controls and existing character of the visual catchment” (Ex 4 par 200). Among other things, he indicated the proposal: “(adopted) similar site coverage as existing larger developments on larger lots within the visual catchment”, and “(provided) full-height building breaks along side and rear boundaries to modulate building mass” (ibid).

Consideration

Interpreting the tensions between applicable planning objectives and controls

  1. As direction is to be sought from them, I can note that there seems to be some quite direct tension amongst objectives and numerical controls applying to the proposal. For example, and as shown in Figure 1 and Figure 2, a block of land encompassing the site and only four other parcels and occupied mostly by two and three storey terrace housing, has been distinctly, and one must assume purposefully, elected for a 3:1 FSR and 18 m building height control under SLEP. At the same time, and among other things, the block is part of a listed heritage conservation area. There are also the design excellence provisions at cl 6.21 of SLEP, which require me to give consideration to such things as the treatment of overshadowing and bulk and massing. The site and environs are also affected by a Locality Statement which again among many other things is looking to “maintain” certain aspects of terrace housing of this kind. This kind of tension is not uncommon of course.

  2. The Applicant submitted that I need to accept that the development standards relating to height and FSR in SLEP provide a prima facie position on the expected development potential for the site, while also recognising that development standards do not of themselves override the provisions of cl 6.21 of SLEP (design excellence provisions). I was taken to Project Venture at [24], where Senior Commissioner Roseth cited constraint on development potential as a physical impact. I believe the point was that the then Senior Commissioner’s acknowledgement of constraint on development potential as a factor in weighing up compatibility gave legitimacy to it as a high level consideration for me here. Something I agree with in principle in any event.

  1. I was also taken to Blackmore Design Group Pty Ltd v Manly Council [2014] NSWLEC 1180 (Blackmore), where Commissioner Tuor found at [38] that the relevant LEP “establishes the desired future character for the area”, and otherwise found in favour of development, of a height and FSR in accordance with the LEP, but which very significantly overshadowed and otherwise impacted on adjoining residences. A factor in the decision was the feasibility, or effect on development potential, were a redesign to be imposed which provided an improved outcome for neighbours (at [42]).

  2. The authority Meriton Properties Management Pty Ltd v Sydney City Council (2004) 140 LGERA 144; [2004] NSWLEC 313 (Meriton), which included a Court planning principle on visual privacy (not at issue here) was referenced. But there was also a point of alignment with another referenced case, Parsonage v Ku-ring-gai Council (2004) 139 LGERA 354; [2004] NSWLEC 347 (Parsonage), which involved a Court planning principle on neighbour solar access impact. Each of these cases make the point that the vulnerability of neighbouring properties to such amenity impacts increases with density. The point is specifically made in Parsonage that (at [8]):

“The ease with which sunlight access can be protected is inversely proportional to the density of development. At low densities, there is a reasonable expectation that a dwelling and some of its open space will retain its existing sunlight. (However, even at low densities there are sites and buildings that are highly vulnerable to being overshadowed.) At higher densities sunlight is harder to protect and the claim to retain it is not as strong.”

  1. Other points in Parsonage (at [8]) are that “(overshadowing) arising out of poor design is not acceptable, even if it satisfies numerical guidelines” and that “(in) areas undergoing change, the impact on what is likely to be built on adjoining sites should be considered as well as the existing development”.

  2. In its closing submission, Council referred to Rebel MH Neutral Bay Pty Ltd v North Sydney Council (2018) 241 LGERA 107; [2018] NSWLEC 191 (Rebel), where at [24] Moore J found that development in accordance with the maximum building envelope control (eg involving FSR and building height controls) in a local environmental plan is “a maximum not an entitlement”, or, as put at [53]:

“…The building envelope is merely a target, a target which is subject to other planning constraints needing to be assessed in the particular circumstances of this site and matters arising from, and with respect to, the interaction between the site and neighbouring development (particularly the heritage item to the north); relevant applicable provisions of the LEP; and relevant applicable provisions of the DCP.”

Interpretive finding

  1. First, I believe it makes sense of course to give considerable weight to SLEP’s building envelope controls. They signal planning ambitions on the part of the SLEP’s drafters and as put in Rebel they are a target. But they are subject to the applicable context including other planning constraints. Mindful of Parsonage (and Meriton), I accept that vulnerability arises for neighbouring properties as a consequence of the applicable FSR and height standards (when compared with areas designated for lower intensity development, even nearby). I do note, however, that the site and its neighbours are located within the B4 Mixed Use zone, which for me raises at least some planning cautions when compared to other higher intensity zones, including by way of the zone objective’s reference to providing for “a mixture of compatible uses”.

  2. I am not convinced that Blackmore provides strong support for the Applicant in this matter today. First, there are the differences in context between that case and the matter before me. One point is the scale of impracticality in delivering a redesign that might reduce the impacts in Blackmore (at [42]). A second, and lesser point, is the “orientation” factor. It seemed from Blackmore (at [41]) that the impacted-upon apartments “borrowed” significantly from the development site given their particular orientation directly towards that site. While I acknowledge the proposal adjoins 36 Hardie Street, and providing sunlight to it (say) would “borrow” in terms of SLEP maximums, there seems to me something different to Blackmore in the fact that 36 Hardie Street sits there within a long established terrace pattern which is otherwise seen as warranting favourable attention (see [41]-[47]).

  3. Second is that I do not think that the finding in Blackmore at [38], that the local environmental plan “establishes the desired future character”, might bind me particularly. For me this links to the evidence of the Applicant’s experts that as the proposal complies with SLEP’s height and FSR standards it is aligned with future character ambitions and its impacts should be expected (see eg Ex 4 pars 51, 145, and 200). The findings in Woollahra Municipal Council v SJD DB2 Pty Ltd [2020] NSWLEC 115 (SJD) (at [45]-[54]) seem to offer a quite different path. In SJD, Preston CJ made findings to suggest an appreciation of intended future character could involve a more nuanced approach than relying on local environmental plan standards like height and FSR. For example, there was no finding that it was impermissible to have regard to future character related provisions within a development control plan in considering the approach (SJD at [50]), a position Council’s experts would generally adopt. In my view a position that assumes the building envelope controls within SLEP might, of itself, or without examination, defeat all other planning controls, as impacts “are expected” is too narrow a view, and that is not to say the Applicant’s evidence does not do more than this. But Rebel is more useful to me (than Blackmore at [38]), where it suggests that I consider such matters as the particular circumstances of this site and the interaction between the site and neighbouring development along with the relevant applicable provisions of SLEP as well as SDCP (see [72]).

Evaluation

  1. In regard to the issue of physical impact, it is clear through the evidence and through observation, that the proposal would have a most serious effect on its neighbour to the south. It is clear that there is an exceptional level of amenity available in the rear courtyard of 36 Hardie Street considering its inner city setting with its northern orientation. It seems to me that it would be no exaggeration to reference the impact (loss of morning sun during winter and other periods to a good portion of the courtyard, sunlight to the living room and the visual massing or sense of enclosure of the proposal in the courtyard) as a consequence of the proposal as “severe” to “devastating” (to borrow from the qualitative reference terms relating to view loss from Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 at [28]). There is also the impact of the loss of morning sunlight to the internal apartment at 40 Hardie Street. One can envisage the benefit the residents might experience from the more fleeting availability of winter sun in a small apartment. But of itself, these impacts do not make the proposal unreasonable. The next part of the test is the reasonableness of the proposal causing the impact.

  2. Mr Dickson referred to the Court’s planning principle sourced from Veloshin in his evidence. Veloshin addresses the reasonableness of building height and bulk (the source of the physical impact here) in consideration of planning controls and the question of what attention is required existing vs desired future character. The planning principles are reproduced below:

“The appropriateness of a proposal’s height and bulk is most usefully assessed against planning controls related to these attributes, such as maximum height, floor space ratio, site coverage and setbacks. The questions to be asked are:

Are the impacts consistent with impacts that may be reasonably expected under the controls? (For complying proposals this question relates to whether the massing has been distributed so as to reduce impacts, rather than to increase them. For non-complying proposals the question cannot be answered unless the difference between the impacts of a complying and a non-complying development is quantified.)

How does the proposal’s height and bulk relate to the height and bulk desired under the relevant controls?

Where the planning controls are aimed at preserving the existing character of an area, additional questions to be asked are:

Does the area have a predominant existing character and are the planning controls likely to maintain it? Does the proposal fit into the existing character of the area?

Where the planning controls are aimed at creating a new character, the existing character is of less relevance. The controls then indicate the nature of the new character desired. The question to be asked is:

Is the proposal consistent with the bulk and character intended by the planning controls?

Where there is an absence of planning controls related to bulk and character, the assessment of a proposal should be based on whether the planning intent for the area appears to be the preservation of the existing character or the creation of a new one. In cases where even this question cannot be answered, reliance on subjective opinion cannot be avoided. The question then is:

Does the proposal look appropriate in its context?

Note: the above questions are not exhaustive; other questions may also be asked.

The above principles are supplementary to, and consistent with, the principles established in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472.”

  1. As would be expected, these principles take one to the existing controls.

SLEP FSR and maximum building height standards

  1. The proposal’s compliance with SLEP’s FSR and height standards is clear and agreed. I will return to the design excellence provisions later.

Solar access

  1. I also believe the actual impact particulars are generally agreed (eg see Ex 4 par 35a and 35e). There is a clear non-compliance with the SDCP controls.

  2. Apart from reference to SLEP compliance, the Applicant’s evidence references vulnerability of the affected residences; and that in terms of overshadowing, “the impact on the private open space 36 Hardie Street with a 5 storey development matches the impact from a 2 storey development” (Ex 4 par 142).

  3. I find the latter point not greatly convincing. Solar access under the objective at section 4.2.3 of SDCP is concerned with ensuring residential amenity is enhanced with among other things “sun access”. This objective does not fall entirely on what happens at mid-winter. It provides a marker. Solar access during the rest of winter and autumn and spring can also be an amenity factor and might be expected to be more available with lower level buildings. So further evidence would certainly be required to demonstrate the truth of the point that “a 5 storey development matches the (overshadowing) impact from a 2 storey development”. My point here is not inconsistent with the provisions of s 4.15(3A)(a) of the EPA Act because the experts agree that the setting is not one where there is compliance with the overshadowing standard in the first instance.

  4. The Applicant’s arguments in regard to the vulnerability of neighbouring sites might be thought of as central to the dispute. Here I must give weight to SLEP but also, mindful of Rebel, SDCP controls (solar access itself along with building setback, height in storeys and the Locality Statement).

Building setback (and other related controls)

  1. There was disagreement among the experts as to whether the proposal complied with the rear setback control and if not to what extent. I acknowledge the different points of attention between objectives (a)(ii) and (c) to Section 4.2.2 to SDCP; which seek to ensure development is “consistent with building setbacks in heritage conservation areas”, but also “(encourage) new building setbacks where appropriate to reinforce the areas desired future character”. Unless by way of the “Building setback and alignment map”, there were no provisions to assist the achievement of objective (c). So the particulars of this “desired future character” would remain open to interpretation, as per my conclusions at [75].

  2. I saw the hub of the disputed position of the experts in regard to rear setback controls surrounded the following phrasings:

  • The objective at section 4.2.2(a)(i) of SDCP which seeks to ensure development:

“is generally consistent with existing, adjacent patterns of building setbacks on the street”

  • The provisions of section 4.2.2.1, which indicate that:

“…Where no setback or alignment is shown on the (Building Setback and Alignment Map, as is the case for Hayden Place), the setback and alignment must be consistent with adjoining buildings. When the setback or alignment varies, either the adjacent or average front setback or alignment is to be adopted.”

  1. The Applicant referred me to the findings of Commissioner Bly in Dougruby Pty Ltd v Wingecarribee Shire Council [2004] NSWLEC 192 (Dougruby), who in turn used Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276, Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 (Malcolm) and MoDog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 443; [2000] NSWLEC 180 (Modog) as authorities. Each of these cases were concerned with appeals relating to, what I will by way of shorthand refer to as, seniors housing proposals. Relevant here, the authorities guide interpretation of a question on whether a site “adjoins land zoned primarily for urban purposes”. A finding in respect of each appeal is that the term “adjoins” should be considered in its “loose sense”, meaning: “near to” or “in the neighbourhood of”. Of course, the case before me does not raise the same question as was put in the above cited authorities in regard to seniors housing. It is the finding of Pearlman J in Modog which I will cite here as it draws in wider interpretative commentary:

“22. In Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276, Bignold J was required to construe the word “adjoins” in the phrase “the land is within or adjoins land zoned for urban uses” in SEPP 5 in its original form. He held, at pp 283 - 284, that the word bears its loose sense of “is near to” or “is neighbouring on” rather than its exact meaning of “is conterminous with”. In Hornsby Shire Council v Malcolm (1986) 60 LGRA 429, the Court of Appeal also adopted a loose sense of the word rather than its exact meaning, and stressed that its meaning depended upon its context (see Kirby P (as he then was) at p 433 and Glass JA at p 443).

23. In the context of the purpose and object of SEPP 5, to which I have already referred, that is, to provide medium density development for housing older people and people with a disability in an urban setting, I respectfully adopt the loose meaning of the word “adjoins” as being “near to” or “in the neighbourhood of”. The question, then, is one of fact - do the facts support a conclusion that the site is near to or in the neighbourhood of land zoned primarily for urban purposes?”

  1. Modog, as cited above, suggests to me that I would be in error to follow the loose sense of the term without considering the context. Or as put directly in the findings of Glass JA in Malcolm (p 443): the word “adjoins” in this instance “must take its colour from the context in which it appears”.

  2. I will first look at the evidence, then frame it in terms of the authorities above. In regard to the expert evidence I note the following:

  • Where Ms Askin argues “the proposed rear setback is consistent with the predominant nil boundary setbacks along Hardie Lane” (Ex 4 par 46), without further explanation, this statement does not seem to follow the factual setting. I will discard this evidence.

  • The particulars of the calculation undertaken by Mr Dickson to suggest “the average rear setback”, to what I understood to be the western alignment of Hayden Place, as 2 m under “provision (3) of Clause 4.2.2.1” were not explained to me. But the calculation seems to be the simple average setback across the four properties to the south of the subject site, not accounting for the longer width of the two southernmost properties.

  • The calculation of Council’s experts to suggest the average rear building setback (as I understood it) to the western alignment of Hayden Place was 3.95m was also not fully explained. It aligns with the simple average setback of all the lots shown in Figure 3, again not accounting for different allotment widths.

  1. When I consider Mr Dickson’s approach (albeit he is acknowledging of a numerical non-compliance), it does not seem to me that an approach which gives such weight to the setbacks to the south of the site beyond the immediate neighbour, and thus relatively little weight to the immediate neighbour of the site itself (ie 36 Hardie Street with its 8 m setback), is a reasonable application of the control.

  2. There would certainly be instances where you may need to look to the wider neighbourhood to adjudge a reasonable rear setback mindful of the “phrasings” referenced at [84]. It is my interpretation that when I consider its “colour”, it is appropriate to think the rear setback control’s use of the term adjoining should be read as having a considerable concern with its relationship with the immediately adjoining neighbour. Provision (3) to section 4.2.2.1 of SDCP says rear setbacks are to be “consistent with adjoining buildings”. A reasonable approach is to read the use of the plural here (“buildings”) to mean the buildings on either side of the development. Then in instances where the buildings on either side vary in setback, then “adjacent or average rear setback … is to be adopted”. The meaning of “adjacent” in the online Macquarie Dictionary is as follows:

“lying near, close, or contiguous; adjoining; neighbouring”

  1. A reasonable interpretation of the latter part of provision (3) is that, within a site with different building setbacks on adjoining properties to either side, the setback lying “near” or “close” be adopted, such that a development would adopt a certain setback to the neighbour “lying near” on one side and a different setback to the neighbour “lying near” on the other side. What I am saying here is that a reasonable, albeit strict, interpretation of rear setback control would suggest an 8m rear setback for the proposal at its southern edge. I acknowledge this is not the only interpretation but it is the one I would prefer in the circumstances. But I need to emphasise that such development plan control level controls are for guidance only and in the circumstances considerable flexibility in the application of such controls is warranted.

  2. Further in regard to “the circumstances”, the reason I do not adopt the Dougruby approach to the definition of adjoining, and see a different contextual setting to that applying to seniors housing development (mindful of Modog and Malcolm, see [87]) is in my interpretation of the words in provision (3) as indicated above. But I also note references in the Locality Statement (SDCP section 2.4.12) that “new infill buildings in terrace housing areas are to maintain the predominant building setbacks, streetwall heights and alignments”, and that development is “to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes. I also note SDCP’s: (1) amenity provisions which are seeking to “enhance” things like sun access, noting the evidence that solar access could be increased with increased rear setback, and (2) height in storeys provisions, where it is suggested that the maximum height might not be achieved unless, for example, a proposal is “consistent with the scale and form of surrounding buildings in heritage conservation areas” (SDCP section 4.2.1.1(2)(b)), noting the improved amenity to No 36 with a scaling back of the building height, including towards the rear setback. There is some harmony across these provisions which might be seen as providing guidance in regard to achieving the first zone objective under SLEP.

  1. Even if I am wrong in my interpretation of this rear setback provision in SDCP, it seems to be agreed by the experts (with the exception of Ms Askin) that there is a non-compliance with the rear setback standard. It is the extent which is at issue. It is clear that, as far as the rear is concerned (only), the proposal could not be seen as meeting the objectives of being “generally consistent with existing, adjacent patterns of building setbacks on the street”, or being “consistent with building setbacks in heritage conservation areas”.

Finding on physical impact

  1. When I return to Veloshin and consider the first two questions, it is clear that SLEP controls have considerable weight as a target. The proposal’s FSR and height comply with SLEP’s controls. These local environment plan level controls do not account for how neighbour interfaces might reasonably work and SDCP provisions can be expected to give guidance here. I do not believe the physical impacts of the proposal are consistent with the impacts reasonably expected under the controls. While I accept the location of the proposed massing to the rear helps in heritage conservation terms it has not been adequately distributed so as to reduce impacts to the south. The applicant’s experts argue that the proposal does not affect midwinter overshadowing when compared to a 2-4 storey building (eg Ex 4 par 34-35), however that is not evidence that relevant amenity objectives are achieved (see [82]). There is also the concern about the visual bulk of the proposed 5 storey building as perceived to the immediate south.

  2. When I consider the second two questions in Veloshin, I see the planning controls are in part aimed at creating a new character (clear from the FSR controls applicable to the relevant part block) and in part retaining existing character (clear from various SDCP references and controls). I am not convinced with Mr Dickson’s argument which adopts a broader brush approach to defining the relevant existing character (Ex 4 par 40 et seq and par 69). If I read the point correctly it includes that because we see today, in Hardie Street and the wider environs, larger scale buildings on large lots sitting “harmoniously” with small scale buildings on smaller lots such as the existing terraces, then the creation of a “large lot” with the subject site (ie via practical amalgamation), can necessarily deliver a similar harmonious relationship. I prefer the position argued by Council’s experts that more localised sensitivity to the interface with 36 Hardie Street is necessary (Ex 4 par 57).

  3. A design with appropriate sensitivity would reduce the massing to the southern boundary. Council’s suggestion of options to reduce visual massing impacts and improve sunlight access do not go so far as a strict application of the SDCP numerical controls on solar access or setback and this is entirely reasonable given vulnerability issues. Council says with the 3.5m side setback at upper levels, a design might not lose much in GFA as the lost floor area could be made up in attic roofs. This lines up with various Court planning principles which would suggest good design might creatively work to achieve density while addressing impact concerns. But, and importantly, I don’t think there’s any obligation on the Council or entitlement on the part of the Applicant to achieve the upper limit of the floor space, which would be the case with the suggested 4.5m upper setback. While I note Ms Askin’s concerns that both a 4.5 and 3.5  m setback would constrain development on 34 Hardie Street, the inclusion of this parcel also seems to assist with the rear setback constraints for the project overall, or at least the Applicant’s arguments in regard to them.

Visual character – presentation to Hayden Place

  1. The particular of concern raised in Contention 4.1 (Ex 1) is the proposal’s visual presentation to Hayden Place. Council saw section 3.2.2 of SDCP as relevant, including objectives (b), (d), (f) which are reproduced below:

“3.2.2 Addressing the street and public domain

A person’s experience of the city will be formed by the public domain as well as private developments which adjoin the public domain. It is important that development adjacent to the public domain be attractive, comfortable, safe, functional and accessible for all. The public domain and pedestrian environment should be characterised by excellence in design, high quality materials and well integrated public art.

Objectives

...

(b) Present appropriate frontages to adjacent streets and public domain in terms of scale, finishes and architectural character.

…

(d) Reinforce street edge conditions that significantly contribute to the characteristics of a heritage conservation area.

…

(f) Ensure that in areas outside of Central Sydney new development relates to neighbouring buildings that define the street and public domain.”

  1. Council’s experts believe the proposed design fails to appropriately respond to the “scale, grain and integrity of the laneway”. Council sees no response to the rhythm and fine grain of the lot layout and the rear of buildings fronting both Hardie Street and Victoria Street. There is insufficient modulation to respond to the scale of the proposed building. An issue is the insufficiency of setback to allow for articulation of the façade. There would be a poor relationship to neighbouring buildings (Ex 4 par 94), and further (ibid):

“A 5 storey building may be acceptable addressing the laneway, but when the 5 storey building is 23 metres long and is poorly articulated and modulated, as discussed above, the overall bulk and scale of the building results in an overbearing impact to the laneway (Hayden Place).”

  1. The Applicant’s experts emphasised the fact that Hayden Place is a no through way and service lane. Design amendments which were undertaken to address concerns raised by Council were also raised. At the larger scale, Mr Dickson highlighted the vertical alignment of windows at all levels which were seen to vertically break up the massing (Ex 4 Fig 4.6), and the 2.26 m full height indentation near the centre of the eastern façade. The visual distinction between the two storey podium and upper three levels also broke the massing.

  2. When I consider the introduction to section 3.2.2 of SDCP, the fact that there would be minimal pedestrian use of the laneway lessens the weight I might attach to the issue. I do agree with Council that the relatively flat façade for the lower two storeys would benefit from further relief, the zero setback presents as a more utilitarian response to the challenge of meeting GFA targets. The upper three levels seem to have a reasonable degree of articulation. I would agree with Council that the proposed presentation to the rear lane could not be seen as exhibiting design excellence, but mindful of Anglican Community Services v Blacktown City Council [2020] NSWLEC 1031 at [63], I do not see cl 6.21 of SLEP as requiring a finding of design excellence in particular design elements of a development. I do not see the visual presentation to Hayden Place as contributing particularly in local character terms now, nor would it in the future were this configuration to be approved. Of itself, in my view, this issue would bring a neutral response, in overall merits terms, noting the fact of the massing’s contribution to the gross floor area “target”.

Other issues

  1. Council also raised concerns in regard to the amenity experienced by future occupants of the hotel (Contention 6), the proposal’s relationship with the objects of the EPA Act (Contention 12), site suitability and public interest concerns (Contention 13) and required changes to parking controls (Contentions 14). I also considered the lay objections to the proposal, with the substance of these summarised in Ex 1 (p 13-15).

  2. Given my ultimate finding, I will not address any of these matters in particular now. What I am interested in here is whether “other” issues might provide positive perspectives on the proposal to override the negative aspects, suffice to say the contentions above do not generally raise such positive points. I would see the key argument that might suggest something of a positive public interest for the proposal arises with the second objective to the applicable B4 Mixed Use zone. Given its location, and ready walking distance to Kings Cross Station, it is reasonable to see this proposal as providing for hotel accommodation which can help with take-up of public transport patronage and encourage walking and cycling mindful of other uses nearby. However, this factor does not balance out the negatives. That is to say, the proposal could still assist in terms of this zone objective, with a more sensitive, albeit lower density of development.

Conclusion

  1. The site and its immediate environs are identified for greater height and density under SLEP than exist now, however these higher level standards do not account for how interfaces with neighbours might work. The proposal provides a substandard response in its relationship with its neighbour to the south, with the orientation of the interface (and proposed massing) significant in this matter given solar access is a particular point of attention. There are obvious design potentialities to provide a more moderated impact on this neighbour in terms of overshadowing and visual bulk (by greater side and/or rear setback or selected height reductions). Some design solutions could also retain solar access to the affected studio apartment in 40 Hardie Street. The achievement of the applicable height and floor space controls under SLEP can be seen as a target but must be read with SDCP controls. I disagree with the view that proposed overshadowing and visual massing effects are consistent with impacts reasonably anticipated under the suite of applicable controls.

  2. The scale of the impact to the immediate south is such that the proposal before the Court fails on merits grounds.

  3. I note the dispute in regard to “design excellence” and the jurisdictional hurdle before the application under cl 6.21 of the SLEP. Both at clause 200 of Ex 4 (Mr Dickson) and at the conclusion of Ex 4 (Mr Dickson and Ms Askin) the Applicant’s experts expressed opinions that the proposal exhibited design excellence and why. Points argued included:

  • A high standard of architectural design and materials were provided because of the consistency with the planning controls, the retention of the “fine grain rhythm of narrow lots”, retention of street setbacks to Hardie Street, similarities with existing larger lot developments (site cover and flat roofs), full height building breaks alongside boundaries and consistency of materials.

  • The “amended” vertical and horizontal modulation to Hayden Place would contribute positively to “improve the current interface conditions along a service lane that is Hayden Place”.

  • The proposal’s achievement of a working hotel design consistent with what I might call SLEP’s development standard targets and the B4 zone intentions, while maintaining the heritage significance of the site, including through restoration elements.

  • Bulk and massing complying with the statutory controls, with retention of existing heights at the street frontage.

  1. In coming to my conclusions on cl 6.21 of SLEP, I have had regard to earlier findings of mine in Gowing Bros Ltd v Coffs Harbour City Council [2020] NSWLEC 1027 at [43], where some framing points were suggested to assist in the interpretation of design excellence clauses of this kind. Here I concentrate on what seems to me to be the priority areas in regard to whether or not the proposal could be found to exhibit design excellence.

  2. Given the particular site context (including the applicable FSR and building height controls under SLEP, the HCA status of the setting, and scale relationships between what is proposed and what exists) the most significant design excellence tests before this proposal related to (1) heritage conservation, and (2) bulk and massing related neighbour impacts.

  3. It is a positive about this quite dense proposal that it has evolved into one retaining a heritage contribution via retention of the terrace frontages and some responsiveness in the other detailing. But that alone falls short of design excellence in my view, given the negative overall external impacts it would bring in heritage terms. I have already indicated the proposal’s relationship to its neighbour is fatal to its assessment. Otherwise, mindful of the submissions of the Applicant, I do not believe the proposal, as a whole, exhibits design excellence.

  4. The Court orders that:

  1. The appeal is dismissed.

  2. Development application D/2020/244 (DA) for alterations and additions to six terraces for use as a hotel is refused.

  3. The following exhibits are returned: 2-7, E and G.

…………………………

P Walsh

Commissioner of the Court

Decision last updated: 06 August 2021

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

14

Statutory Material Cited

2

Anglican Community Services v Blacktown City Council [2020] NSWLEC 1031
Dainford Ltd v Smith [1985] HCA 23
Blackmore Design Group Pty Ltd v Manly Council [2014] NSWLEC 1180