RDO v Sydney City Council

[2007] NSWLEC 805

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:    RDO v Sydney City Council [2007]  NSWLEC 805

PARTIES:
Applicant:
Rob Design Office

Respondent:
Sydney City Council

FILE NUMBER(S):    10833  of        2007

CATCHWORDS:       Development Application :- conservation area, "activation" of streetscape

LEGISLATION CITED:

CASES CITED:

CORAM:        Roseth SC

DATES OF HEARING:          03/12/2007

JUDGMENT DATE: 11 December 2007

LEGAL REPRESENTATIVES

Applicant:
Mr C Shaw, solicitor of Shaw Reynolds Bowen & Gerathy. lawyers
Respondent:
Mr S Kondilios, solicitor of Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

11 December 2007

10833 of 2007     RDO v Sydney City Council

JUDGMENT

1. Senior Commissioner:  This an appeal against six conditions imposed by Sydney City Council (the council) on a deferred commencement consent, dated 7 May 2007, for the erection of a new four-storey mixed use building on the vacant part of lot 1 DP 75456, known as 252-256 Cleveland Street, Surry Hills.  The parties have resolved their dispute in respect of four of the conditions appealed against, leaving two for the Court’s determination.  The conditions that remain in dispute are Part A (2) and Part B (25). 

2. Condition Part A (2) (a deferred commencement condition) states:

   The proposed new vehicle entrance on Buckingham Street is to be removed.  A more clearly defined pedestrian entrance is to be provided which is proportionate in height and width to the surrounding streetscape.  To allow the applicant flexibility in provision of parking on the site to meet the needs of their business, one of the following two options may be pursued:

a..           Removal of all car parking within the proposed building whilst retaining car parking within the existing building; or
a..           Provision of additional car parking within the ground floor of the existing building through relocation of the plant/machinery from this area into the proposed building. 

Should option (b) be pursued, the existing vehicular entrance may be increased in width by up to 800mm to the south to improve vehicular access into the ground floor of the existing building. 

1. Condition Part B (25) (an operational condition) states:

   All vehicles must always be driven onto and off the site in a forward direction. 

   The site

2. The site is at the corner of Cleveland and Buckingham Streets.  At the front of the site, facing Cleveland Street is a two-storey inter-War warehouse building, now used as a printing business.  At the rear of the site is an existing car park.  The site is in the Cleveland Gardens Conservation Area and is identified as a contributory item.  Buckingham Street is a quiet side street.  Many of its buildings are residential and identified as detracting items in the Conservation Area.  However, the row of terraces immediately to the north of the site is identified as a heritage item.  There is a sprinkling of businesses, mainly at ground level. 

   The proposal and its history

3. The applicant proposes to erect a four-storey mixed-use building on the rear part of the site that is now used for car parking.  The ground floor of the new building is to be used for parking with access through a new vehicular entrance from Buckingham Street.  The existing vehicular entrance into the existing building (also from Buckingham Street) is to be kept and the ground floor of the existing building is to be used for parking.  This results in two crossovers close to each other; which is the source of the dispute about Condition Part A (2). 

4. The applicant lodged the development application in May 2006.  Following notification, the council received no objections.  The council approved the application in May 2007 subject to conditions some of which are now on appeal.  The applicant lodged the appeal in August 2007. 

   Relevant planning instruments and policies

5. Four planning documents are relevant:

• South Sydney Local Environmental Plan 1998 (the LEP) (which zones the site Zone No 10);

• South Sydney Development Control Plan 1997 – Urban Design (the Urban Design DCP);

• South Sydney Development Control Plan No 11 – Transport Guidelines for Development 1996 (the Transport DCP) ; and

• City of Sydney Heritage Development Control Plan 2006 (the Heritage DCP). 

  Matters in contention

1. The council submitted its Statement of Contentions containing seven matters, several of which were resolved before the hearing.  Two matters remained in contention, ie

• whether two vehicular entrances (one existing and one new) to Buckingham Street were acceptable; and

• whether it was necessary for vehicles to exit the site in a forward direction. 

  One vehicular entrance, or two?

1. Clause 10 of the LEP requires the consent authority to form the opinion that a development is consistent with the zone objectives.  The LEP lists eight objectives for Zone 10, none of which appear to me to assist the resolution of this particular dispute.  (The council’s advocate, Mr S Kondilios, did not claim that they were relevant, though he took me to clause 10 of the LEP.)  In clause 22 the LEP lists its Heritage aims, of which aim (e) is relevant, ie

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

2. Under Part E clause 4.2 Safety and Security of the Urban Design DCP, the first of three controls is:

   Development has an “active” street frontage where appropriate.  

3. The experts who gave oral evidence were Mr Jeremy Swan, the council’s area manager for Surry Hills; Ms Katie MacDonald, a town planner with the council; Mr Robert Varga, a traffic consultant retained by the applicant; Mr Robert Harper, an architecture graduate and the designer of the proposal; and Mr James Lovell, a town planner retained by the applicant.  Mr Andrew Aspden, the council’s traffic expert, had attended the joint conference; however, he did not give evidence since he had reached agreement with Mr Varga.  In the joint expert report (by Mr Aspden, Ms MacDonald, Mr Varga and Mr Lovell), Mr Lovell and Ms MacDonald had written:

   JL and KM agree that, given the issues related to car parking previously discussed by the traffic experts, the constraints of the site will not allow car parking to be retained on site while still providing a viable amount of floor space at ground floor level to provide an appropriate use that activates the public domain.  Given the above, the retention at the garage door to the infill building is considered an acceptable solution. 

4. If Ms MacDonald had retained her position at the hearing, the dispute would have been resolved.  Mr Swan, who was not part of the joint conference, said that he disagreed with the two vehicular entrances because they lead to three undesirable consequences:

• the “interactive” parts of the elevation are reduced;

• there are two crossovers close to each other; and

• the tree in the way of the proposed driveway is removed. 

1. Mr Swan agreed, however, that the retention of the tree was not important, since it was in poor health.  In oral evidence Ms MacDonald agreed with Mr Swan.  In Mr Lovell’s opinion the two vehicular entrances did not have an adverse impact on Buckingham Street. 

2. The council prepared a sketch (Exhibit 6) to demonstrate how the proposal could be changed to eliminate one of the vehicular entrances and include a turntable.  The redesign involves the relocation of the plant room into what is shown as a car park in the application.  Mr Harper agreed that the redesign would be possible; however, it would be expensive, would destroy the structural integrity of the existing building, and would place the plant room into an area where the ceiling is too low for it.  Mr Harper produced his own sketch (Exhibit E), which redesigned the Buckingham Street elevation giving less emphasis to the vehicular entrance. 

3. In my opinion, the amendments suggested by the council’s experts in Exhibit 6 are not practicable since they are likely to result in a building that is functionally inappropriate for the applicant’s operations.  If the Court imposed a condition requiring those amendments, the consent would be tantamount to refusal.  And for what purpose?  The council’s reason for deleting one of the vehicular entrances is to provide “passive surveillance” and to “activate the public domain”.  The only difference between the applicant’s proposal and the council’s suggested amendments is that the council’s amendment would result in a larger display window at ground floor level.  However, even with the retention of the vehicular entrance (in accordance with Exhibit E), a display window, albeit smaller, is provided.  As for surveillance, I do not think that the occupants of the proposed building will provide passive surveillance of the street, whether there are one or two vehicular entrances.  I note that many of the buildings in Buckingham Street are residential and they do not “activate” the street. 

4. I accept that one crossover is better than two, however, in a quiet street like Buckingham Street, two crossovers do not present danger to pedestrians.  I note that the two traffic experts have reached agreement on all issues concerning them.  Providing that the elevation is amended according to Exhibit E, the proposal will have a satisfactory appearance to Buckingham Street.  There is therefore no justification for Condition Part A (2).  The condition is deleted. 

   Forward or reverse exit from car park?

5. Clause 4.6.2 of the Transport DCP requires that

   all vehicles should enter and leave in a forward direction. 

6. The applicant’s traffic expert, Mr Varga, and the council’s, Mr Aspden, agree that reverse movement from the site is acceptable.  Mr Varga gave three reasons for this: Buckingham Street is a quiet street, there are few pedestrians on it, and the site generates a low turnover of vehicles.  Despite Mr Aspden’s agreement, the council contended that reverse existing is unsatisfactory and submitted that the Court should confirm Condition Par B (25).  Given the agreement of the traffic experts and the difficulty in including a turntable in the building, I dot think that this would be reasonable.  Condition Part B (25) is therefore deleted. 

7. The applicant is directed to file and serve an amended elevation to Buckingham Street in accordance with Exhibit E by COB 14 December 2007.  The council is directed to prepare a set of conditions that reflects the agreements reached with the applicant and deletes Conditions Part A (2) and Part B (25), also by 14 December 2007.  Following the receipt of the amended elevation and the electronic version of the conditions, the Court will issue orders upholding the appeal subject to the revised conditions.  The exhibits may be returned except Exhibit D. 

   ____________________
   Dr John Roseth
   Senior Commissioner