Roche Group Pty Ltd v Leichhardt Council
[2012] NSWLEC 1347
•19 December 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Roche Group Pty Ltd v Leichhardt Council [2012] NSWLEC 1347 Hearing dates: 12-16 November 2012 Decision date: 19 December 2012 Jurisdiction: Class 1 Before: Tuor C, Morris C Decision: Appeal dismissed
Catchwords: Development Application: Bulk, scale, impact on views, tree loss, traffic, parking, contamination Legislation Cited: Leichhardt Local Environmental Plan 2000; State Environmental Planning Policy No. 1 - Development Standards;
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005;
State Environmental Planning Policy No. 55 - Remediation of Land;
State Environmental Planning Policy No. 64 - Advertising and Signage;
State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development;
State Environmental Planning Policy Infrastructure 2007Cases Cited: Lim v Pittwater Council [2005] NSWLEC 239;
Tenacity Consulting v Warringah Council [2004] NSWLEC 140Texts Cited: Developer Contributions Plan No 1 Open Space and Recreation;
Leichhardt Development Control Plan 2000;
Sydney Harbour Foreshores and Waterways Area Development Control PlanCategory: Principal judgment Parties: Roche Group Pty Limited (Applicant)
Leichhardt Council (Respondent)Representation: Counsel
Mr G Green
Mr A Galasso SC (Applicant)
Solicitors
Mr M Sonter
Gadens Lawyers (Applicant)
Pikes & Verekers Lawyers (Respondent)
File Number(s): 10430 of 2012
Judgment
Roche Group P/L own waterfront land in Balmain known as No. 100-102 Elliot Street and lodged development application D/2011/529 with Leichhardt Council seeking consent to demolish the existing structures on the site and construct a mixed use development in 6 buildings over a basement carpark for 217 cars. The application proposed site remediation and earthworks, tree removal, landscaping and associated works and contained commercial and retail uses, a gym and 118 residential units.
The Joint Regional Planning Panel (JRPP) refused the application and Roche is appealing that decision.
The issues in the case are whether the height, bulk and scale of the development is appropriate and consistent with the streetscape and the controls in relevant planning documents; impacts on views from adjoining properties and the water; tree loss; traffic and parking and extent of remediation required.
Background and the proposal
The original application was lodged with the council on 4 October 2011 and amended on one occasion with that proposal being determined by the JRPP which unanimously rejected the application on 21 March 2012 for four principal reasons as follows:
(a) Its bulky appearance from the water;
(b) The relationship of the proposal to the water;
(c) The inadequate transition from the small-scale environment of Broderick and Elliott Streets; and
(d) The view impact on 13 Broderick Street, which, in the opinion of the Panel, is catastrophic.
The JRPP provided further detail of the reasons for refusal. In an attempt to address those issues, the applicant has prepared amended plans (Issue F). The Court has granted leave to rely on those plans. The council renotified the Issue F plans and a number of objections were received.
The Issue F plans propose the construction of 7 buildings ranging in height from 3 to 5 storeys above a basement carpark. The carpark extends one and two levels below ground. The buildings, identified as buildings A, A1, B, C, D, E and F, are depicted in the plan below.
The development incorporates a total of 101 residential units, (28 x 1 bedroom, 50 x 2 bedroom and 23 x 3 bedrooms), 2999 sq m of commercial floor space, 173 sq m of retail floorspace nominated for use as a convenience store and a café, spa, gymnasium and meeting room for use by residential and commercial occupants of the development. During the course of the proceedings, the applicant proposed, through the imposition of conditions, the deletion of the gymnasium area and conversion of that space to office suites.
The seven buildings to be constructed above the basement are as follows:
- Building A- a 4 and 5 storey building containing commercial offices at the basement and lower ground floor and residential units above.
- Building A1 - a 4 storey building containing commercial offices on the ground floor and residential units above.
- Building B - a 4 storey building containing gymnasium, lounge, spa, locker storage at the lower ground level, 3 residential units and a meeting room at ground floor and residential units above (See [7] for proposed changes to ground floor usage).
- Building C- a 5 storey building with commercial offices at the lower ground and ground floors and residential units above.
- Building D - a 4 storey building with commercial offices on the ground floor and residential units above.
- Building E - a part 3 and part 4 storey building containing the main entry foyer, commercial office space, café, children's play area/residents' outdoor area and two residential units at ground level and residential units above.
- Building F - a 4 storey building containing a convenience store and commercial office suite at ground level and residential units above.
Car access to the site is proposed via a two-way driveway off Elliott Street approximately 55 m west of its intersection with Lockhart Avenue. A second crossing, 20 m to the west and also off Elliott Street, services a ramp that provides access to loading docks and garbage storage rooms. The basement carpark provides parking for 213 cars, of which 50 are to be reserved for the commercial and retail tenants, 6 for visitors to commercial tenancies, 12 for visitors to the residences and 156 to be allocated to the residential units of which 36 are tandem/stacked spaces. 58 bike parking spaces and a courier parking space is also proposed within the basement areas.
The application also provides for the dedication of land adjacent to the waterfront as a public reserve, provision of internal landscaped spaces, public pedestrian connection of Broderick Street to the foreshore, tree removal and tree planting, foreshore works to retain, expose and restore natural rock outcrop/shelves, removal of existing masonry and timber log retaining walls and construction of new sandstone retaining walls with associated level changes along the waterfront, paving and landscaping. A commercial plaza is proposed to allow the retention of a large Fig tree in the north-eastern corner of the site. The plaza area is adjacent to the main entry, café and convenience store at the corner of Elliott Street and Lockhart Avenue.
The area of land to be dedicated to the council includes a 6 m wide through site link to provide access from Broderick Street to the reserve, an irregular strip of land, proposed to be dedicated along the foreshore. The width of the foreshore reserve varies from approximately 13 m to 25 m and the total area of land to be dedicated to the council is in the vicinity of 2680 sq m. In addition, conditions of consent require the registration of a right-of-way across the Broderick Street frontage to the site to provide for the construction of a footpath. The site has been identified in the Council's Developer Contributions Plan No 1 Open Space and Recreation as a site from which the council would be seeking a land dedication upon its redevelopment.
The site and its context
The site is a triangular shaped parcel of land with frontage of 184 m to Elliott Street (northern boundary), 62 m to Broderick Street (southern boundary) and 151 m to the Parramatta River (western boundary). The site comprises two allotments, Lot 6 in DP 617944 and Lot 1 in DP 619996, with a combined area of 12,375 sq m and slopes from 17m AHD in the eastern corner to approximately 2 m AHD at the sandstone retaining wall at the edge of the river. The sloping topography means the site, and residential properties located to its northern eastern and southern sides benefit, to varying degrees, from views across Iron Cove to the Iron Cove Bridge, Birkenhead Point and Drummoyne, Cockatoo and Spectacle Islands and further distant views to Woolwich and Hunters Hill.
The Balmain West Ferry wharf is located at the western end of Elliott Street adjacent to the site. Ferries service the wharf Monday to Friday on an approximate hourly basis during morning and afternoon peak hours (3 services each) connecting to Circular Quay, Milsons Point and McMahons Point.
The site is currently used as a mix of commercial, warehouse and convention centre uses by Nutrimetics. The structures on the land comprise a two level office and warehouse building over a carpark in the north western portion of the site, a two storey commercial building and attached single storey convention centre at the eastern end of the site erected to the Broderick Street boundary and a decked carpark structure in the southern portion of the site. The western foreshore area contains a number of mature trees. Trees of varying size are located across the site.
A sandstone seawall is constructed to the Parramatta River and a sandstone retaining wall, timber access, timber retaining walls and paved surfaces provide access to a timber jetty and floating pontoon.
Development to the immediate north of the site, on the opposite side of Elliott Street, is a large public housing development built during the mid 1900s comprising 8 residential flat buildings varying in height from 3-5 storeys and setback varying distances ranging from 5-15 m from the roadway. A complex of three storey residential flat buildings is also located to the east of the site on the corner of Elliott and Glassop Streets and Lockhart Avenue.
Located opposite the site in Broderick Street are closely spaced single dwelling houses varying in form, scale, style, age and siting. The dwellings range from one to three storeys with setbacks between 1 m to greater than 6 m. The site shares its only common boundary with No. 2 Broderick Street, a allotment that contains a contemporary, two storey dwelling that steps down the land to the waterfront.
Development further to the east along Elliott Street as it rises towards Darling Street, comprises primarily two storey attached and detached dwelling houses with some single and three storey residences, including heritage items.
A site view was conducted in the company of the parties and included observation of the site from the water. That view indicated the diversity of built form in proximity of the site with development stepping up the slope and appearing to range in height from single up to 5 levels when viewed from the water. There is a mix of single detached dwelling houses and residential flat buildings. Sites are generally landscaped although this also varies with large trees evident on some sites and limited vegetation provided on others. Similarly, the treatment of the foreshore varies from open grassed and natural areas to dense planting.
The planning controls
The site is zoned Business under the provisions of Leichhardt Local Environmental Plan 2000 (LEP). The development is permissible with consent. In accordance with clause 7(3) of the LEP
Consent must not be granted for development proposed within a zone unless the consent authority has taken into consideration such of the objectives of the Plan as are relevant to the proposal and is satisfied that the development is consistent with those objectives.
For the purposes of this subclause, in the event of an inconsistency between the general objectives of the Plan and a specific objective applicable to the proposed use, the specific objective applicable to the proposed use prevails.
The general objectives are listed in clause 13 of the LEP and those relevant to the application area:
General objectives
(1) The general objective for ecologically sustainable development is to encourage the incorporation of the principles of ecologically sustainable development in the design and management of the built and natural environment to:
(a) .....
(b) minimise negative impacts of urban development on the natural, social, physical and historical environment, and
(c) maintain and enhance the quality of life, both now and for the future.
(2) The general objective for the built and natural environment and amenity is to encourage the design of buildings, structures and spaces which are compatible with the character, form and scale of the area to:
(a) protect and enhance the area's natural features, character and appearance, and
(b) protect, conserve and enhance the area's heritage, and
(c) provide an environment meeting the principles of good urban design, and
(d) maintain amenity and contribute to a sense of place and community, and
(e) provide an environment which is visually stimulating, while being easy to manage and maintain, and
(f) provide adequate access and linkages to public open space, and
(g) accommodate the existing and future needs of the locality concerned, and
(h) protect and conserve ecologically sensitive land, particularly that which is visually exposed to the waters of Sydney Harbour and the Parramatta River and of natural or aesthetic significance at the water's edge...........
(3) The general objective for transport and access is to encourage the integration of the residential and non-residential land uses with public and private transport and improve access to:
(a) reduce the need for car travel and subsequent pressure on the existing road networks, and
(b) maximise utilisation of existing and future public transport facilities, and
(c) maximise the opportunity for pedestrian and cycle links, and.......
The site is within the Balmain Heritage Conservation Area and the heritage objectives contained in clause 15 and the general provisions for conservation areas in clause 16(8) of the LEP apply.
The provisions of clause 16(7), (development in the vicinity of a heritage item) apply. No 96 Elliott Street, a dwelling known as Braeside, is a listed heritage item of local significance and is located opposite the site on the corner of Broderick Street.
No 2 Broderick Street is listed in the LEP as a heritage item of local significance. However, it was subdivided from the adjoining site (No. 4 Broderick Street), which is part of a group of dwellings (including Nos 6 & 8) listed as heritage items under the LEP. It is agreed that the listing was not modified to reflect the subdivision of what was formerly known as No 2 and is now No 4 and that the dwelling at No. 2 has no heritage significance, rather, it is the building on No 4 that has heritage value. Similarly, the parties agree that the Ficus trees in Elliott Street, identified as heritage items, are not contained within the site.
The housing objectives are contained in clause 17 and those relevant to the application are:
(a) to provide development standards to ensure that the density and landscaped areas of new housing are complimentary to and compatible with the style, orientation and pattern of surrounding buildings, works and landscaping and to take into account the suite of controls in Leichhardt Development Control Plan 2000 to achieve the desired future character,
(b) to provide landscaped areas that are suitable for substantial tree planting and of a size and location suitable for the use and enjoyment of residents,
(c) ....,
(d) to provide a diverse range of housing in terms of size, type, form, layout, location, affordability and adaptability to accommodate the varied needs of the community, including persons with special needs,......
The employment objectives are contained in clause 20 and relevant to the application are the following subclauses:
(a) to ensure the sustainable growth of Leichhardt's economy by retaining existing employment uses and fostering a range of new industrial and business uses to meet the needs of the community,
(b) to reinforce and enhance the role, function and identity of established business centres by encouraging appropriate development and to ensure that surrounding development does not detract from the function of these centres,
(c) to integrate residential and business development in business centres,
(d) to ensure that buildings to be used for employment are appropriately located and designed to minimise the generation of noise, traffic, car parking, waste, pollution and other adverse impacts, to maintain the amenity of surrounding land uses, and avoid harm to the environment,.....
Floor space ratio (FSR) controls are contained in clauses 19 and 23. For residential development, except where the development is carried out in accordance with clause 23(1), the maximum FSR for the site is 0.7:1 with a minimum landscaped area of 40% of which 25% is to be deep soil. Clause 23(1) states:
(1) Commercial floor space control
(a) Consent must not be granted to the carrying out of non-residential development on land within any zone if it will result in the floor space ratio of a building on the land exceeding 1:1.
(b) Consent may be granted to the carrying out of mixed residential and other development on land within the Business Zone which results in a floor space ratio of a building on the land up to 1.5:1, but only if all floor space at the ground floor or street level is used for non-residential purposes (except for any floor space used for service and access purposes required for the residential component of the building in the floors above).
(c) Residential development on land within the Business Zone is only allowed in accordance with paragraph (b).
The effect of clause 23(1) is that a mixed use development on the site can have a maximum FSR of 1.5:1 provided all of the ground/street level floor space is used for non-residential purposes. The application has been lodged under this provision and has a FSR of 1.37:1.
Clauses 33 and 34 apply to the foreshore areas and state:
33 Foreshore building line
(1) The foreshore building line is shown on the Foreshore Building Line Map as an unbroken red line.
(2) Except as provided by subclause (3), a building must not be erected and a work must not be carried out on land between the foreshore building line and the mean high water mark.
(3) Consent may be granted for the erection of baths, swimming pools and enclosures, boatsheds, changing rooms, jetties and sea walls on land between the foreshore building line and the mean high water mark, but only if the consent authority is satisfied that the building or work will not detract from the scenic qualities of the locality when viewed from the water.
34 Foreshore access
Consent must not be granted to development on land which could provide access to the foreshore and links to existing or proposed open spaces, unless the consent authority has taken into consideration the provision of that access.
The application includes a proposal to carry out works within the foreshore building line that applies to the site. Some of that work is permitted by clause 33(3) i.e., the works to the sea wall however, other work is not. That work includes the construction of pathways, steps and park benches. It also included a viewing platform, however the applicant deleted that work during the hearing.
The application includes an objection to the development standard contained in clause 33 pursuant to the provisions of State Environmental Planning Policy No. 1 - Development Standards (SEPP1). The council agrees the objection is well founded and supports the upholding of the objection.
Leichhardt Development Control Plan 2000 (LDCP2000) applies to the site and supplements the controls contained in the LEP. Parts A, B and C are relevant to the determination of the application and in particular, A7.0 Heritage Conservation; A10.6 Balmain Suburb Profile; A10.6.6 Birchgrove/Elkington Park Distinctive Neighbourhood; B1.2 Building Form, Envelope and Siting; B1.3 Car parking; B3.4 Access to Views; B4.4 Foreshore Development; B4.6 Residential Development in Business Areas; C1.1 Site layout and building design; C1.2 Parking layout servicing and manoeuvring and C1.3 Landscaping.
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREPSHC) applies to the site. The aims of the plan, contained in clause 2 are:
(1) This plan has the following aims with respect to the Sydney Harbour Catchment:
(a) to ensure that the catchment, foreshores, waterways and islands of Sydney Harbour are recognised, protected, enhanced and maintained:
(i) as an outstanding natural asset, and
(ii) as a public asset of national and heritage significance,
for existing and future generations,
(b) to ensure a healthy, sustainable environment on land and water,
(c) to achieve a high quality and ecologically sustainable urban environment,
(d) to ensure a prosperous working harbour and an effective transport corridor,
(e) to encourage a culturally rich and vibrant place for people,
(f) to ensure accessibility to and along Sydney Harbour and its foreshores,
(g) to ensure the protection, maintenance and rehabilitation of watercourses, wetlands, riparian lands, remnant vegetation and ecological connectivity,
(h) to provide a consolidated, simplified and updated legislative framework for future planning.
(2) For the purpose of enabling these aims to be achieved in relation to the Foreshores and Waterways Area, this plan adopts the following principles:
(a) Sydney Harbour is to be recognised as a public resource, owned by the public, to be protected for the public good,
(b) the public good has precedence over the private good whenever and whatever change is proposed for Sydney Harbour or its foreshores,
(c) protection of the natural assets of Sydney Harbour has precedence over all other interests.
In accordance with the provisions of clause 20(a) of SREPSHC, the matters for consideration listed in Division 2 must be taken into consideration by consent authorities before granting consent to development under Part 4 of the Act. Those matters of particular relevance to the application are clauses 21 (Biodiversity, ecology and environment protection), 22 (Public access to, and use of, foreshores and waterways), 25 (Foreshore and waterways scenic quality) and 26 (Maintenance, protection and enhancement of views).
The Sydney Harbour Foreshores and Waterways Area Development Control Plan (SHRWADDCP) also applies to the site. Chapters 1 (Introduction), 2 (Ecological Assessment), 3 (Landscape Assessment), 4 (Design Guidelines for water-based and land/water interface developments) and 5, (Design guidelines for land-based developments) are particular matters to be considered in relation to the contentions in the case.
State Environmental Planning Policy No. 55 - Remediation of Land (SEPP55) applies to the site. Consideration of this policy is provided below under the heading contamination.
Other State Policies that apply to the application are State Environmental Planning Policy No. 64 - Advertising and Signage (SEPP64), State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP65) and State Environmental Planning Policy Infrastructure 2007 (SEPP Infrastructure).
The evidence
The first day of the hearing was conducted on site and included inspecting a number of dwellings in the vicinity of the site in the company of the owners of those properties who gave evidence of their concerns. The impacts of the development, particularly in regard to view loss, were described. Properties in Bridge, Elliott and Broderick Streets were inspected.
Other issues raised by residents were that the location of the convenience store and café was inappropriate and would result in amenity impacts, the scale of the development was excessive and not in character with adjoining development, the development would create traffic and parking problems, the design of the development did not reflect the heritage significance of the area, loss of trees and green space, loss of privacy, increased setbacks to Broderick Street should be provided and overshadowing impact.
Expert evidence was heard from:
Applicant Council
Traffic Mr T Rogers Mr J Coady
Arboriculture Mr P Castor Mr G Paroissien
Landscaping Mr P Lawson Ms N Sonter
Urban Design Ms G Morrish Mr M Robinson (also heritage)
Planning Mr T Moore Ms D Laidlaw
Contamination Mr J Nash Dr W Ryall
Traffic and Parking
The contentions in relation to traffic and parking are whether the number of on-site parking spaces is adequate and the location and number of loading bays is appropriate. A condition of consent proposed by the council requires the provision of a turning circle at the western end of Elliott Street adjacent to the ferry wharf. The experts discussed the demand for such a facility.
Parking standards and controls are set out in Part 8.0 of LDCP2000. The principles of the control include ensuring that safe and sufficient parking for all modes of transport is provided to meet anticipated demands and to restrain employee off-street parking provisions to discourage car travel whilst improving the design and quality of the urban environment and access by walking, cycling and public transport to housing, jobs and services. The rational to be applied requires that parking is provided to meet the needs of the proposed use. Parking rates are provided which are intended to be a generic guide and adjusted for local circumstances, employee densities, public transport accessibility and reduced car mode share targets, where appropriate. Staff parking rates are based on the principle of providing parking supply up to 20% lower than observed or calculated demand to discourage car usage for journey to work travel.
The experts agree that the 156 parking spaces provided for the residential component are appropriate for the redevelopment proposal, and satisfies the minimum parking required by LDCP2000 (87 spaces) and is less than the maximum provision (174 spaces).
The experts also agree that the 56 parking spaces provided for the commercial component satisfies the minimum parking requirement under the LDCP2000 (45 spaces) and is less than the maximum provision (90 spaces). They also agree that, provided each tandem space is allocated to the same tenants, the tandem arrangement is satisfactory.
However, they do not agree whether the provision of 56 commercial spaces is adequate for the site. Mr Rogers says the site has good access to public transport (bus services along Darling Street and the adjacent ferry wharf), the council's principles for parking are "to restrain employee off street parking provisions to discourage car travel", the parking provided is satisfactory and consistent with the council's planning objectives. Mr Coady says the access to public transport cannot be described as good because the ferry service is limited to hourly peak services Monday to Friday only, there is no connecting bus service from the wharf and the bus service in Darling Street is a distance of between 250 and 400 m uphill. He also cites the principle that requires safe and sufficient parking for all modes of transport to meet anticipated demands and to improve the design and quality of the urban environment.
Mr Coady considers parking for the commercial component should be provided consistent with the rate recommended by Roads and Maritime Services (RMS) being 1 space per 40 sq m of gross floor area in areas where there is an unrestrained parking situation. In that case, a total of 75 spaces would be required for the commercial floorspace with a further 7 spaces for the convenience store, totalling 82 spaces. Mr Coady says there is a significant shortfall of 26 spaces and this will result in demand for on street parking during business hours and would take up approximately 150 m of kerbside parking in Elliott and Broderick Streets, thereby having an unacceptable impact. Mr Coady is also critical of the location of the spaces allocated to the commercial tenancies saying that because they are all located in the eastern carpark, they are too distant from many of the commercial offices. In his opinion, particularly in the case of visitors but also staff, would more likely park on Elliott Street than make use of the on-site spaces. Mr Rogers disagrees and says the spaces are within easy walking distance to all tenancies.
Two loading bays and a courier parking bay are proposed and Mr Rogers considers the quantum and location of these spaces is adequate and appropriate. Mr Coady disagrees and says the spaces are unlikely to be used as they are not convenient to the retail and commercial tenancies. In some cases they require use of lifts to access different levels of the complex and travelling distances from 10 - 100 m. For those reasons, he considers deliveries are more likely to occur on street.
Mr Rogers says the development is consistent with the council's polices for parking and not contrary to the employment objectives contained within clause 20 of the LEP. Mr Coady disagrees and says the development has not been designed to minimise the generation of on-street carparking by the workforce of the commercial floorspace and is therefore contrary to objective in clause 20(d).
The applicant disputed the council's condition requiring the construction of a turning circle at the western end of Elliott Street adjacent to the ferry wharf and the experts provided an addendum to their joint report (Exhibit 25). They agree that the turning bay addresses an existing deficiency, its provision would improve traffic conditions and would be used by vehicles not associated with the proposed development. Mr Rogers says that it is not required as a result of the development because it provides adequate on-site parking and loading facilities and there would be minimal need for vehicles associated with the proposed development to turn around in Elliott Street. Mr Coady, accepting that the work would provide some public benefit not associated with the proposed development, says it should be required because there is insufficient commercial parking and poor accessibility from the loading dock which will result in on-street parking and loading. He says that the costs of the works should be shared between the council and the applicant and could, if provided for in the council's Developer Contributions Plan, be offset against s94 contributions. The Court has no evidence whether the work is work included in s94 plans.
Findings
The guidance provided in LDCP2000 on how to apply the parking range suggests that it is appropriate to rely on local circumstances, employee densities, public transport accessibility and reduced car mode share targets, where appropriate. The number of spaces allocated to the commercial floor space at 56 spaces is towards the lower end of the range (range is 45-90 spaces) whereas the residential provision is towards the high end (156 spaces provided within the range of 87-174 spaces).
With regard to the application of the RMS controls, it is noted that these state, "it is the responsibility of local government to determine parking policy in commercial centres. Distinction needs to be drawn between whether the parking demand is to be met on-site (unrestrained situation) or whether car parking supply is to be used as a policy tool to restrict commuter movement by private vehicles into a commercial centre (restrained situation)." In the case of a restrained situation, the RMS refers to the council's parking code and in this case, the parking provided complies with that code, as the council's policy is to restrict commuter movements so as to encourage use of public transport.
The site is within reasonable walking distance of a regular bus service in Darling Street and also has access to peak hour ferry services. Applying the guidance in the DCP, we would expect that where a site has direct access to comprehensive transport networks that provide regular services throughout the times commercial premises would operate, that the parking requirements envisaged in the DCP would be at the lower end of the range. Such circumstances would apply to business zones in established commercial centres, for example, along Victoria Road. However, the site does not enjoy such a high level of service and, as Mr Coady says, is off the main bus route and has limited ferry services available. It is also not within a commercial centre where multi-purpose trips could occur. Accordingly, we consider, particularly having regard to the location of the other business zones and the commercial centres within the Leichhardt local government area, that are on major roads, the parking requirement for the commercial floor space should be towards the upper end of the controls and that the parking provided is inadequate, and would result in the use of on street parking to meet the demands of the development. As the site is not located in a restrained parking area, this impact is unsatisfactory.
It is noted that the allocation of parking within the complex could be undertaken so that the commercial spaces are located in closer proximity to the tenancies and that aspect is not a reason to reject the proposal.
We accept Mr Roger's evidence that the residential and commercial visitor spaces can be shared as the peak demands will not coincide and accordingly, additional on-site spaces (12 resident visitor spaces) could be available during the week, however, this would not remedy the identified commercial parking deficiency. Whilst the proximity of the loading bays to the retail space is not ideal, the distance required to travel within the building is considered acceptable for the commercial use, although we note the likelihood of on street loading for the retail premises, as this is more convenient. That issue alone would not be a reason to refuse consent.
In relation to the need to construct a turning circle in Elliott Street, we do not consider that the whole of the demand for this facility is a result of the development but that it is likely vehicles associated with the development will need to turn around in that location. Therefore, the costs of the facility should be shared, as suggested by Mr Coady, provided the council can fund its share of the costs.
Contamination
A program of environmental investigation was undertaken on behalf of the applicant and revealed the presence of contamination in fill materials on the site. A Remediation Action Plan (RAP) has been prepared to address the contamination. The experts disagree whether sufficient investigation has been carried out, particularly with regard to the area of foreshore to be dedicated to the council. Mr Nash says an appropriate amount of investigations has been undertaken at the site comprising 1.5ha, including the foreshore area and that all significant contamination present on the site will be remediated if the RAP is implemented. On the basis of investigations conducted, he says the data indicates that no remediation is required in the dedication area.
Dr Ryall has reviewed the investigation and RAP and says that because the site is to be subdivided to provide for the dedication of the foreshore area, the investigations should have considered the site as two lots and carried out more detailed testing across both sites. He says an inadequate number of boreholes have been taken within the foreshore area and because it is likely that the fill materials identified at the locations of bores BH116 and BH106 extend onto the foreshore land, contamination may be present in this area. He says additional investigation is also required for the chemicals of potential concern in fill materials that were not sampled and analysed in the proposed foreshore area and further investigation to assess the quality of groundwater migrating from the site at the interface of the fill materials and the sandstone bedrock is also required and that it is only following assessment of the results of the work he identifies, that a reliable RAP can be finalised.
Mr Nash considers that there was no need to undertake the investigations as two sites because the dedication of the land was considered, the precise foreshore building line was plotted and borehole locations were chosen to reflect the boundary, and the sampling exceeds the EPA guidelines for one site. What had not occurred was the definition of the area to be dedicated to the council, which differs from the building line. He notes that a site auditor would be appointed to oversee the remediation of the site and this will ensure that the site is remediated so that it is suitable for its intended purpose. Mr Nash says that the site auditor may deem it necessary to undertake more sampling and in the event that a hot spot is identified, is satisfied that it could be dealt with by either excavation and removal off site or capping.
Dr Ryall acknowledged that his comments had been made in the absence of knowledge that an accredited site auditor was to be appointed and said that provided the site auditor produces a Site Audit Statement that indicates the remediation has been undertaken in accordance with appropriate standards for the intended use of the land it would allay his concerns, however, he would still not be personally satisfied with the results.
The retention of the trees within the foreshore area depends on whether any contamination is found and if it is, the ability to remediate the site without the need to remove large volumes of soil around those trees. Mr Nash says that it may be possible to provide grids around the base of the trees to prevent contact with the contaminated soil and that would be a decision for the site auditor. Dr Ryall says that the only way to guarantee that there is no long-term liability to the council, in the event that a tree dies and needs to be removed, is for the site to be fully tested and all contaminates removed prior to dedication.
At the conclusion of the hearing, we had no certainty that the trees could be retained if contaminants were found in the foreshore area. There is also no certainty of the manner in which the foreshore will be treated if contaminants are found and whether long-term management of the area would be required. Mr Nash is of the opinion that appropriate testing has been undertaken which shows no evidence of contamination and Dr Ryall considers that there may be areas of contamination that would require remediation. Our findings in relation to contamination are therefore linked to the issue of trees and follow. Despite this issue, we are satisfied, on the evidence provided, that the site can be remediated to a standard suited to its intended purpose as required under SEPP55. It is a matter for the council to determine the extent and manner of remediation required to the land to be dedicated, prior to accepting ownership.
Aboriculture
At the conclusion of the hearing the experts had agreed that 33 of the 102 trees currently on or adjacent to the site (96 on site and 6 within the adjacent road reserve) could be retained with a further 3 in dispute. Those trees in dispute are Trees 14 (15 m Jacaranda within the foreshore setback area, 59 (10 m Fig in the centre of the site) and 87 (19 m Fig at the eastern end of the site overhanging Elliott Street). Agreement was reached on conditions that should be imposed to ensure retention of a number of trees that were initially in dispute but resolved during the on-site view and subsequent joint conferencing. The conditions (Exhibit 21) have been prepared to address works required in the event that the Court found it possible to retain Trees 14, 59 and 87, as well as the other 8 trees originally in dispute.
The experts agree that a number of trees nominated for removal was acceptable due to structural risks and/or poor health. They disagree on the methodology to be used to categorise the retention value of the trees and subsequently, the number of trees of high landscape value that are to be retained. Also they disagree that, as a result of the extent of remediation and the desire for views, the long-term retention of the 18 trees within the foreshore setback and 3 immediately adjacent to that area will be possible.
Mr Castor says that whilst there are differences in the landscape significance and retention value index applied by the experts, the majority of the most significant trees on and adjacent to the site are proposed to be retained. Mr Paroissien considers the extent of loss of high value trees has been under-estimated, is higher than calculated by Mr Castor and compares the value of the semi-circular planting of plane trees to the two small Alexandra palms, which were given the same retention rating by Mr Castor. Mr Paroissien concludes the plane trees have significantly greater landscape retention value and contribute more to character of the site.
The remaining difference between the experts is whether Trees 14, 59 and 87 can be retained. Tree 14 is potentially impacted by remediation and construction works, particularly stormwater pipes. Mr Castor considers that the pipes could be relocated and that only minor lopping of one limb would be required. Mr Paroissien says that because there is a need to pile for the basement and construct drainage works in close proximity to the tree as well as prune the tree due to its proximity to Building A, he could not guarantee it could be retained.
Tree 58 is a fig with roots currently growing down the interior wall of the decked carpark and rooted into the basement wall. Mr Paroissien considers that the extent of work to be carried out around the tree is such that it is unlikely to survive. Mr Castor, whilst conceding he had not carried out any root mapping of the tree, says its vigour can only improve and by its nature, has the capacity to survive the works.
Tree 87 is a significant fig tree within the Elliott Street frontage of the site near the corner of Broderick Street and is within the area that the proposed plaza would be constructed. The experts agree that the development will result in excavation within the tree's structural root zone. Mr Paroissien is concerned that the totality of works required in the vicinity of the tree will prejudice its survival. He cites the excavation required to enlarge the basement, the new driveway and buildings and the extent of hardstand to be introduced together with accessible pathways. Mr Castor says the tree is "tough" and the roots can be redirected over time.
In relation to the contention as to whether sufficient deepsoil planting areas are provided to support the establishment of the tree species to be planted, the experts agree that soil depths of 800 mm to 1 m will be suitable for establishment of vegetation. Mr Castor says there is adequate soil volume over construction and opportunities for root breakout into Broderick Street to allow adequate growth for medium sized (6-8m diameter crown) trees. Mr Paroissen says that the planting of trees in limited areas in proximity to buildings and pedestrian access routes creates direct conflicts between the canopy and buildings, restriction to sunlight and natural light, lifting of structures and that this means the trees will have limited area to develop their usual dimensions and natural form, thereby reducing their landscape contribution.
Landscape
Ms Sonter summarises the landscape contentions as:
- The loss of trees and vegetation of scale from the site;
- Whether that loss has been adequately compensated for by the introduction of significant landscape of scale across the site;
- Consistency or otherwise with the provisions of SREPSHC and SHRWADDCP;
- The adequacy of the landscape solution in terms of providing an appropriate level of amenity for future residents of the proposed development.
Ms Sonter says the proposal does not promote a balance of landscape to built form, when viewed from the water and is therefore contrary to the objectives contained within the Birchgrove/Elkington Park Distinctive Neighbourhood provisions in LDCP2000 because of the lack of canopy trees and trees of similar scale to that of the proposed built form. The closeness of the proposed buildings and the extensive basement carparks preclude the distribution of deep soil areas and generous building separation across the site that would facilitate the successful growth of canopy trees across the site. In addition the narrow setbacks to the street, preclude the establishment of canopy trees within the streetscape in a manner that is achieved, for example on the northern side of Elliott Street. The majority of canopy trees are to be retained within the foreshore dedication area with a concentration of built form and small-scale vegetation across more than half of the site.
Mr Lawson disagrees and says the revegetation of the site with 197 new large, medium and small trees will meet the objective of LDCP2000 and SREPSHC. He says that the landscape design does not intend to locate large trees near building forms, but a combined canopy of medium and grouped smaller trees can achieve the same canopy effect. Ms Sonter says that this design philosophy results in two negative impacts; the built form and extensive paved areas will be the dominant forms with the open space, creating a less than desirable amenity for future residents in the Birchgrove/ Elkington Park Distinctive Neighbourhood precinct that is marked by more natural landscaped garden areas rather than harder urban/civic precincts. Further, in most views from the neighbourhood into the site and from the water towards the site, the trees will not be of sufficient scale to be visible above the form of the buildings.
Ms Sonter says the development is contrary to one of the key principles of SREPSHC in that it fails to acknowledge the significance of the landscape of the site as a natural asset of Sydney Harbour and does not ".... complement the scenic character of the area" in that the loss of significant canopy across the site fails to "...protect the integrity of foreshores with distinctive visual features" or "to ensure that vegetation...on hillsides should be retained and supplemented with existing planting to provide a backdrop to the waterway". Mr Lawson disagrees and says the objectives are met, in that the remnant natural foreshore landscape, forward of the existing commercial buildings is retained and improved by the exposure of buried sandstone rock formations plus the removal of exotic vegetation and replacement with endemic species. Nearly all evergreen, existing trees will be retained in the foreshore setback area with existing deciduous trees replaced by evergreens and the natural assets in the foreshore setback area retained and improved by the proposed landscape design.
Ms Sonter is also critical of the reliance on the foreshore to landscape the site. She considers the planting is too dense and will conflict with the desire for views. In her opinion, a more appropriate solution for the site would be for the foreshore area to be planted with open canopy trees such as angophoras to enable views into and out of the site and utilise trees of scale between buildings.
Findings
As we are uncertain as to the long term retention of trees within the foreshore building area due to the doubts that remain in regard to possible remediation works, we have regard to the evidence of all experts that at least some of the trees may in fact require removal, not only because of possible contamination. Even with the retention of all of the trees that the experts agree can be retained and the trees in dispute, we do not consider the development meets the objectives of the SREPSHC or the LEP and LDCP2000. The loss of large canopy trees across the site and the inability to provide replacement canopy trees within the development of scale commensurate with the built form, means that the vegetated hillside is lost and replaced by large scale buildings. We accept the evidence of Ms Sonter that the loss of trees of scale across the site and the failure to provide for their replacement will adversely alter the balance of landscape to built form and fails to ensure retention of the vegetated hillsides when viewed from the harbour.
In the event that the foreshore trees require removal and were replaced with either similar species or the "view trees" advocated by the experts, a similar but more adverse result would occur.
For these reasons, we determine the landscape design for the site is unsatisfactory and inconsistent with the objectives of the planning controls.
Planning and urban design
The key dispute between the planning and urban design experts is whether the proposal is a form of development anticipated by the planning controls.
Ms Morrish and Mr Moore consider the Business zoning of the site, its proposed mixed residential/commercial use and the FSR control in the LEP, which permits an FSR of 1.5:1, envisages a form of development other than a terrace style buildings.
In Ms Morrish's and Mr Moore's opinion, the objectives for Housing in cl 17 of the LEP aim to "ensure that density and housing are complementary to and compatible with surrounding building and works". These objectives are reinforced by the LDCP2000 controls for residential development in Part B, which recognise that "diversity in form, use and subdivision pattern are part of the character of the area" and that the controls seek to respond to this varied existing character.
Ms Morrish and Mr Moore contend that the controls recognise that "one size does not fit all" and that the context of the particular development needs to be considered. In particular, the Building Envelope Control (B1.2) permits departures based on aspects of the surrounding development such as building height. The controls for non residential development, in Part C of the LDCP2000, have similar requirements for development to respond to existing streetscapes and building heights and provide flexibility for roof forms and allow landmark and gateway buildings on corner or junction sites.
In the opinion of Ms Morrish and Mr Moore, the appropriate context for the site:
...from which scale, massing, height and other design clues must be taken are Elliot Street, Broderick Street and the waterfront. It is not appropriate...to simply apply one of the prevalent typologies - the 2 storey terrace with pitched roof, even if on a larger scale, particularly as this typology is not in close proximity to the site along Elliot Street.
Ms Morrish and Mr Moore consider that the Building Envelope of the proposal in Broderick Street responds appropriately to the height, bulk and form of existing residential development in the street.
Ms Morrish and Mr Moore rely on the Department of Housing and other foreshore development to establish the appropriate Building Envelope for the buildings in Elliot Street and along the foreshore. The surrounding development includes four to five storey buildings and, in their opinion, the proposed buildings fit comfortably within this context.
Ms Morrish and Mr Moore consider that the setback of the buildings from Elliot Street, the separation between the buildings and the relationship of built form to open space and landscaping are compatible with the existing and desired future character sought for the Birchgrove/Elkington Park Distinctive Neighbourhood.
Ms Laidlaw and Mr Robinson acknowledge that the site is within the Business zone and that cl 23(1) of the LEP enables a FSR of up to 1.5:1 for a mixed use development, but only if the ground floor is used for non residential purposes. However, they note that the FSR is the maximum permissible which can only be achieved if the proposal achieves the other requirements of the LEP and those in the LDCP2000.
In particular, Mr Robinson considers the location of the site within the Balmain heritage conservation area (HCA) and the assessment required under cl 16(8) of the LEP of the extent to which the development would affect the heritage significance of the conservation area, is a fundamental consideration for development of the site. In his opinion, the management of the HCA is articulated in Part A of the LDCP2000 which identifies Distinctive Neighbourhoods, their existing character, desired future character and a suite of controls to achieve this future character. He states that the desired future character Statement and the Neighbourhood Controls:
....provide a development framework designed to conserve and reinforce the existing character of the neighbourhood and thus achieve the objectives of the LEP including its heritage conservation objectives.
Further, Mr Robinson considers that the critical controls for achieving the LEP conservation objectives are those designed to control the height, bulk, form and scale of a development. For the Birchgrove/Elkington Park Neighbourhood the principle control is a Building Envelope generated by a wall height of 6 m. The particulars of how this should be applied to control the overall bulk of a residential building are provided in Part B1.2 of the LDCP2000, in particular the Building Envelope Guidelines.
Ms Laidlaw and Mr Robinson, accept that the Building Envelope for residential development in Part B of the LDCP2000 can be varied in accordance with the Building Envelope Guidelines to respond to the context of the site. They also agree that the controls in Part C of the LDCP2000 for non residential development require new development to respect the streetscape, general built form and character of the area.
Ms Laidlaw and Mr Robinson acknowledge that even though the form of the development along Broderick Street exceeds the Building Envelope control for residential development, it is an appropriate response to the height, bulk and scale of existing development on the opposite side of the street.
However, council's experts reach different conclusions to Ms Morrish and Mr Moore on whether the variation to the Building Envelope control is an appropriate response to the existing context of Elliot Street and the water. This difference of opinion centres on the weight to be given to the Department of Housing opposite the site.
Mr Robinson considers that the Department of Housing was built in 1947 prior to urban design and heritage controls. It is "anachronistic in an area of high heritage value characterised by a diverse mix of single and two storey Victorian and Federation houses" and would be unlikely to be considered as of acceptable height, bulk and design if proposed today. In his opinion, it is inappropriate to respond to a development which is clearly not part of the predominant character of the area or what is sought by the desired future character.
The Department of Housing is significantly higher and of a different form to other contributory development in the area. In Ms Laidlaw's opinion, this does not justify the proposal, which exceeds the height and footprint of the Department of Housing and provides less setback. Ms Laidlaw and Mr Robinson consider that the proposal's response to the context of Elliot Street is unacceptable.
Ms Laidlaw and Mr Robinson's principle concern relates to the view of the development from the water. In their opinion, the recent development to the west of the site is not a form of development that should be emulated, particularly as it is not within the Birchgrove/Elkington Park Neighbourhood. Similarly the Department of Housing buildings to the east is not development that forms part of the predominant existing character of the Neighbourhood or is what is sought as the desired future character. In Ms Laidlaw's opinion, the height of the proposal when viewed from the water exceeds that of the Department of Housing and other foreshore development and is exacerbated by the lack of vertical proportion, separation and significant landscaping between the buildings.
Mr Robinson considers that the proposal is an inappropriate response to the heritage significance of the waterway, to individual heritage items, such as Braeside, and to the conservation area as whole.
Findings
The proposal is for residential units with ground floor commercial spaces. The site is currently used for business purposes, which is reflected in its Business zoning. The site is larger than the other land zoned Business under the LEP, which are mostly small lots along the Darling Street spine, in close proximity to public transport. It is isolated from the Darling Street Business zone and is surrounded by land zoned residential and open space.
The LEP and LDCP2000 do not provide explicit controls for a mixed commercia/residential development on a large site zoned for Business purposes. Clause 23(1)(b) of the LEP enables a FSR of 'up to 1.5:1' on land in the Business Zone to be achieved by a mixed residential/commercial development. The proposal is below this FSR and the applicant places significant weight on this control dictating the form of development that may occur on the site.
However, the FSR control must be applied within the framework established within the LEP by its General Objectives and the specific objectives for Heritage Conservation, Housing and Employment, as well as those in the LDCP2000.
Part A of the LDCP2000 applies to all forms of development. It includes the Balmain Suburb Profile, which establishes the desired future character sought for the Birchgrove/Elkington Park Distinctive Neighbourhood and the Neighbourhood Controls by which this character may be achieved. We accept Mr Robinson's evidence that the Neighbourhood Controls also establish a framework for the conservation of the HCA and the satisfaction of the requirements of cl 16(8) of the LEP.
A fundamental element of the Neighbourhood Controls is the Building Envelope control (A10.6.6), which permits a maximum building wall height of 6 m. The key issues in dispute between the parties centre on this control.
Part B of the LDCP2000 applies to the residential component of the development (approximately 14640sqm). The Building Envelope control in B1.2 of the LDCP2000 specifies that:
All new development must fit within the relevant Building Envelope, as set by the relevant Suburb Profile...Any departure from this control must be in accordance with the Building Envelope Guidelines
The Building Envelope Guidelines include a discussion on 'How to determine a building envelope' which includes:
The Suburb Profiles give an indication of the general height and roof form of buildings in the area. This is a general guide and the prevailing circumstances should be paramount in assessing a
building envelope.
In addition to the information given in the Suburb Profiles, consider the following aspects of surrounding development in relation to the
proposal:
•ridge heights;
•eaves heights;
•roof form and pitch;
•proportion of the street frontage covered bythe building elevation;
•any articulation of the front elevations.
The building envelope defines the maximum potential volume of a development above ground level. It applies to the whole area of a building defined by external walls.....
The envelope has two height components, a wall height and a roof control comprising of an inclined plane at 45 degrees from the top of the wall height.
The wall height is related to the average in the area (see Suburb Profiles for the relevant wall height). The wall height is measured from existing ground level, at the front of the
building. ....
The roof control applies 45 degree inclined planes to significant (eg street) elevations of the building to permit compatible roof forms..... Normally the height of a development including wall height and roof form should not exceed the ridge heights of adjoining development.
Part C of the LDCP2000 applies to the non-residential component of the development being the commercial use of the ground floor (approximately 3500sqm). The Building Envelope control in C1.1 specifies:
The building envelope is determined on a site by site basis, subject to the following principles;
The envelope control ensures new development fits with the height and scale of adjacent development, and provides for a
balanced streetscape.
The building form and design responds to the nature of the
streetscape.
The wall height is used as the key envelope control, and applied to the 'front' of the building only. A specific wall height may be identified in the Suburb Profile.
Consequently, the Building Envelope control for both the residential and commercial component of the development envisage a wall height control of 6m for the site within the Birchgrove/Elkington Parl Distinctive Neighbourhood. However, this can be varied in response to the immediate context of the development to ensure a compatible relationship. Inherent in any variation to this control, is the concept that the existing development to which the new development should respond is development that contributes to the existing and desired future character sought for the area. It would be a nonsense if development, which is antipathetic to the character of a Distinctive Neighbourhood, were to be the justification for further uncharacteristic development. We accept the evidence of Ms Laidlaw and Mr Robinson, that the Department of Housing complex is not a form of development which contributes to the Neighbourhood or the HCA and is not what is sought as the desired future character.
The experts generally agree that given the mixed use of the proposal, its large site and the immediate context of the Department of Housing, the wall height control and therefore the Building Envelope can be varied and that Elliot Street 'can absorb a more robust built form than Broderick Street and could adopt a contemporary architectural expression'. However, they disagree on the extent of variation and the final form that the development should take.
The Building Envelope Guidelines for residential development provide guidance on how to determine a building envelope. This requires a consideration of the matters in the Suburb Profile as well as aspects of the surrounding development. Given that the majority of the development is residential and its surrounding context is residential, these aspects are appropriate to consider in determining the appropriate Building Envelope for the proposal.
Even if the surrounding context in Elliot Street is limited to the Department of Housing development, the ridge height and eaves height of the proposal exceeds the height of those buildings. Given that the height of the Department of Housing buildings exceeds that of other residential development in the surrounding area, there is no justification for a further exceedance.
The roof form and pitch of the proposal are different to the Department of Housing units and to the predominantly pitched roof form in the surrounding area sought by the planning controls. We accept that a pitched roof form is not an essential element that needs to be replicated within the development. However, the upper levels should be setback within the 45 degree roof plane to reduce the building wall height and consequently the bulk of the buildings.
A significant proportion of the Elliot Street frontage would be covered by both the Department of Housing units and the proposal. The Department of Housing development appears as a continuous wall of buildings, however, this is alleviated by its varied setbacks to the street and significant canopy tree planting. The setback of the proposal provides little opportunity for landscaping and canopy trees, consequently the bulk of the proposed buildings would be more apparent from the streetscape than the Department of Housing development opposite.
Similarly, the manner in which the buildings are articulated, separated and step down Elliot Street does not alleviate the bulk of the buildings.
For these reasons, the building envelope of the proposal in Elliot Street does not adequately respond to the form of development sought by the Suburb Profile or the aspects of surrounding development that are required to be considered in determining an appropriate building envelope for residential development.
Similarly, the buildings in Elliot Street do not adequately address the principles for determining a building envelope for commercial development. The buildings do not fit in with the height and scale of adjacent development to provide for a balanced streetscape. Nor do the form and design adequately respond to the nature of the streetscape.
When viewed from the water, the surrounding development along the waterfront within the Birchgrove/Elkington Park Distinctive Neighbourhood includes the Department of Housing units, a variety of housing types and multi unit developments. Development on the 'slopes' is also clearly visible from the waterfront. Generally the housing along the waterfront is of a greater scale than that on the slopes of Balmain. Foreshore development includes houses, which have four to five levels that generally step down with the topography of the land, as well as multi unit developments.
However, when viewed from the water, the predominate form of development in the Neighbourhood is vertical in proportion, with greater height than width. The built form is also generally separated and softened by landscaping, particularly where it steps up the slope of the peninsula. Notably, from the water the Department of Housing buildings present narrow façades with significant space between the built elements and opportunities to view through the buildings and to landscaped areas.
As discussed previously, the appearance of the development from the water will vary depending upon the extent of landscaping that can be retained within the foreshore area. However, consistent with the principles established by Roseth SC in Lim v Pittwater Council [2005] NSWLEC 239, the purpose of landscaping is to enhance and soften an otherwise appropriate built form, not to conceal it. The development should not rely on screening by any foreshore vegetation to achieve consistency with the local character.
The front/west elevations of the Foreshore buildings A, A1 and B, as well the length of these buildings will be able to be viewed from the water. Although articulated and separated, these buildings appear as a significant mass with little opportunity to provide landscaping between the buildings. In particular, the "gap" in Building A1 is not sufficient to provide significant landscaping or to reduce the bulk of this building, which will read as one building from the water.
The proposed Building Envelope of the foreshore buildings does not adequately respond to its context or result in a development, which would achieve the desired future character sought for the Birchgrove/Elkington Park Distinctive Neighbourhood. For these reasons the application must fail.
View loss
Ms Laidlaw, Ms Morrish and Mr Moore assessed the view loss to the residential properties in Broderick, Bridge and Elliot Streets. They agreed that the appropriate approach to assessing views is established by the view sharing principles set out in Part B3.4 of the LDCP2000, the REP and the judgment of Roseth SC in Tenacity Consulting v Warringah Council [2004] NSWLEC 140.
The experts generally agreed on the extent of view loss/retention but reached different conclusions on the reasonableness of this impact. This disagreement centred on whether or not the view loss resulted from a non-complying Building Envelope. As discussed above, Ms Laidlaw does not support the proposed Building Envelopes in Elliot Street and along the foreshore as being an appropriate response to their context. While she accepts that the Building Envelopes in Broderick Street are an appropriate urban form, which responds to the dwellings on the other side of the street, she raised concerns about the impact on views.
Ms Morrish and Mr Moore consider the Building Envelopes respond to the context on each interface and that the view loss is an inevitable result. They consider that the design has been modified to minimise view loss and as such is acceptable.
Findings
For the reasons we have discussed above, the Building Envelopes of the buildings in Elliot Street and the foreshore are not supported and consequently, their impact on views is also not reasonable. A reduction in the height of buildings A, C and E, as suggested by Ms Laidlaw, would assist in minimising view loss to those affected properties in Broderick and Elliot Streets.
Conclusion
Having regard to the evidence provided and our findings in relation to the inadequacy of the parking provided on site, view loss, landscaping and tree loss but most importantly, the failure of the development to fit within the locality and to respond to the form of development sought by the Suburb Profile as required under the LEP, SREPSHC, LDCP2000 and SHRWADDCP, consent cannot be granted.
The Orders of the Court are:
(1) The appeal is dismissed.
(2) Development Application D/2011/529 that proposed demolition of existing buildings and construction of a mixed-use development comprising commercial floorspace and 101 residential units with associated carparking and dedication of foreshore reserve at 100-102 Elliot Street, Balmain is refused consent.
(3) The exhibits, other than exhibits A and B, are returned.
_______________________ _____________________
Annelise Tuor Sue Morris
Commissioner of the Court Commissioner of the Court
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Decision last updated: 19 December 2012
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