Romer v City of Sydney Council

[2018] NSWLEC 1078

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Romer v City of Sydney Council [2018] NSWLEC 1078
Hearing dates:	28 and 29 November 2017
Date of orders:	16 March 2018
Decision date:	22 February 2018
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	The orders of the Court are: (1) The applicant is granted leave to rely on amended plans. (2) The Court approves the clause 4.6 variation of the development control for Floor Space Ratio set out in clause 4.4 of the Sydney Local Environmental Plan 2012. (3) The appeal is upheld. (4) Development consent is granted to Development Application D/2016/1760 for alterations and additions to an existing dwelling house at 1A Zamia Street, Redfern subject to the conditions in Annexure A. (5) The exhibits are returned other than exhibits A, G and 1.
Catchwords:	DEVELOPMENT APPLICATION – terrace extension in heritage conservation area; impact on conservation area; impact on streetscape; height exceedance; FSR exceedance; clause 4.6 application; design excellence considerations; public interest
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sydney Local Environmental Plan 2012
Cases Cited:	Nil
Texts Cited:	Sydney Development Control Plan 2012
Category:	Principal judgment
Parties:	Louise Romer (Applicant) City of Sydney Council (Respondent)
Representation:	Counsel: Ms J Reid, barrister (Applicant) Dr S Berveling, barrister (Respondent)   Solicitors: Hartley Solicitors (Applicant) City of Sydney Council (Respondent)
File Number(s):	2017/217088
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal under section 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal of a development application by the City of Sydney Council (the Council) for the extension of an existing terrace dwelling (the terrace) at 1A Zamia Street, Redfern (the site).

2. The primary ground for refusal was based on the impact of the upper level components of the extension on a contributory building and on the heritage conservation area (HCA) in which the terrace is located.

Background to the appeal

3. Development Application No. D/2016/1760 (the application) sought consent for additions and alterations to an existing terrace on the site. The site currently contains an existing two storey terrace, one of a pair, the other having the street address of 109 Baptist Street.

4. The application as lodged proposed a number of alterations. To the ground floor, proposed extensions comprised removal of existing rear wing walls, construction of a new ground level extension partly extending into an existing breezeway to the northern boundary, and removal of an internal brick post. A new garage was also proposed at the rear. On the first floor (second storey), the proposal was to construct a new internal staircase. An additional storey, containing a new bedroom with deck, was proposed located behind the front parapet. These works require the removal and replacement of the roof.

5. The applicant argued the additional level comprised an ‘attic’ whilst the Council contended it was a third storey.

6. The proposal breached both the height and floor space ratio (FSR) standards for the site contained in the Sydney Local Environmental Plan 2012 (the LEP). Requests to vary these standards under clause 4.6 of the LEP were submitted.

7. The application was notified and two submissions were received raising concerns that the proposed third storey would have a detrimental impact on the HCA and streetscape, and that inadequate justification had been provided for the non-compliances sought to the FSR and height standards.

8. One of the submissions was from the adjoining terrace at 109 Baptist Street raising concerns in terms of the detrimental impact on visual amenity, light and air flow to this property and that the works would have a detrimental impact on the structure of No. 109 and cause damage, with a dilapidation report required for any approval.

9. Modifications were undertaken to the application in an attempt to address Council and objector concerns. However, the third storey element and non-compliances to the development standards remained.

10. Following is a section showing what was proposed at the Zamia Street elevation extracted from the Joint Expert Report (Exhibit 2):

Proposed section showing that the existing skillion roof is to be demolished, front parapet retained and a new level added, as well the extensions to the rear

11. Also contained in Exhibit 2, and reproduced below, are representations of the elevations as viewed from Baptist Street and Zamia Street respectively provided by the applicant’s experts, to argue that the visual impact of the upper level extension would be minimal.

12. The Council refused the application essentially as: the development did not achieve a high quality urban form reflecting the desired existing or future character or conserving environmental heritage; the proposed third storey would result in a detrimental heritage outcome and did not meet the LEP height, FSR, or conservation objectives; and, consequently, the development would not be in the public interest.

13. The appeal was listed initially for conciliation under s 34AA of the Land and Environment Court Act, 1979 (the Court Act) and commenced onsite where the Court viewed the terrace and walked surrounding streets in the HCA, being the block bounded by Baptist, Telopea and Zamia Streets and Kepos Lane. Examples were seen of terrace additions. No objectors were present.

14. The site view was in the company of the parties as well as: the heritage experts, Mr Oultram for the applicant and Mr Wang, Council’s Heritage Specialist; and the planners, Mr Betros for the applicant and Ms Dyer for the Council (the experts). The experts conferred and produced a single Joint Expert Report (Exhibit 2).

15. As agreement could not be reached, the conciliation was terminated and the matter proceeded to a hearing before me pursuant to the provisions of s 34AA(2)(b)(i) of the Court Act.

16. The applicant sought and was granted leave for further amendments to the application proposed by the experts in an effort to respond to the Council contentions. These included a sloping roof at the rear and deletion of windows facing Zamia Street in order to reduce the visual impact of the addition when viewed from the adjoining streets and lane.

17. The applicant also agreed to conditions of consent to address the structural concerns of the neighbour, to not lower the ceiling at the front of the terrace, and to metal cladding material for the third storey.

The site and surrounds

18. The site is 122m² in area and is situated on the north eastern corner of Zamia and Baptists Streets with a 24m frontage to Zamia Street and a 5m frontage to Baptist Street. Kepos Lane adjoins to the rear and runs parallel to Baptist Street.

19. The site contains a two storey residential terrace which forms a pair with 109 Baptist Street to its north and is believed to have been constructed in the late Victorian or early Federation era.

20. The front door of 1A Zamia Street is located in the side elevation which fronts Zamia Street and comprises a solid masonry wall built on the boundary stepping down from a parapet at Baptist Street towards the rear. The main front elevation to Baptist Street is two storey with a veranda at ground level, a balcony at the upper level and a parapet above. The main roof is a skillion hidden by the front and side parapets. A double storey rear wing is built adjacent to the southern boundary with a side setback provided to the northern boundary.

21. The site is located at the southern end of a row of attached two storey terraces to the north which have a consistent rear building line extending to Telopea Street.

22. A range of single and two storey terraces are located to the east, west and south. All other buildings on the corner of Zamia and Baptist Streets are single storey. There is a playground situated south east on the opposite side of Zamia Street and a bus stop on Baptist Street diagonally opposite. Street trees are planted along Zamia Street adjoining the site’s southern boundary.

Statutory Context

23. The site is located in the General Residential R1 zone under the LEP where the proposed development is permissible with consent. The objectives of the zone are:

-   To provide for the housing needs of the community.

-   To provide for a variety of housing types and densities.

-   To enable other land uses that provide facilities or services to meet the day to day needs of residents.

-   To maintain the existing land use pattern of predominantly residential uses.

24. Under the LEP, the site is subject to a maximum height limit of 9m and maximum FSR of 1:1.

25. The applicable objectives of the height standard found at clause 4.3(1) of the LEP are:

(a) to ensure the height of development is appropriate to the condition of the site and its context,

(b) to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas,

(c) to promote the sharing of views,

26. The objectives of the FSR standard found at clause 4.4 (1) of the LEP are:

(a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future,

(b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic,

(c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure,

(d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality.

27. The height and FSR standards can be varied under the provisions of the LEP at clause 4.6, with the relevant provisions as follows:

4.6 Exceptions to development standards

(1) The objectives of this clause are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

(5) In deciding whether to grant concurrence, the Secretary must consider:

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Secretary before granting concurrence.

(6)    -.

28. The site is located in the Baptist Street HCA under the LEP. Relevant heritage provisions are found at clause 5.10:

5.10   Heritage conservation

Note. Heritage items (if any) are listed and described in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Maps as well as being described in Schedule 5.

(1) Objectives

The objectives of this clause are as follows:

(a) to conserve the environmental heritage of the City of Sydney,

(b)  to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, …

(2) Requirement for consent

Development consent is required for any of the following:

(a)  demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance):

(i) a heritage item,

(ii) an Aboriginal object,

(iii) a building, work, relic or tree within a heritage conservation area, …

(3) …

(4) Effect of proposed development on heritage significance

The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

(5) Heritage assessment

The consent authority may, before granting consent to any development:

(a)  on land on which a heritage item is located, or

(b)  on land that is within a heritage conservation area, or

(c)  on land that is within the vicinity of land referred to in paragraph (a) or (b),

require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

29. The LEP also requires design excellence to be achieved under clause 6.21.

30. Development is also subject to the provisions of the Sydney Development Control Plan 2012 (the DCP). The DCP designates the terrace and adjacent properties on all boundaries as ‘contributory buildings’ in the HCA.

31. Section 1.1 of the DCP states that, when it is not relevant to comply with the controls in the DCP, applicants must provide a written submission clearly demonstrating compliance with the objectives of the DCP, and detailing the reasons the control/s should be varied. The proposed variation must result in a better outcome and meet all objectives of this DCP, and demonstrate that it will result in better outcomes.

32. Section 2 establishes desired future character and supporting principles for development in specified localities. The site is centrally located in the ‘Baptist Street Locality’ for which the locality statement relevantly states:

The Baptist Street neighbourhood is to remain a low scale residential area. The consistent terrace rows including their scale and proportions, roof design and materials are to be retained. High quality alterations and additions should retain the rear yard character and residential amenity.

33. The relevant principles for development in the Baptist Street Locality are:

(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) Protect the streetscape character and preserve consistent rows of terrace

houses.

(d) Maintain heritage and contributory terrace rows along streets and lanes.

(e) Retain the low scale built form, consistent building types and original roof

forms.

(f) Design development to allow visual appreciation of heritage and

contributory items by responding to the height, mass and predominant

horizontal and vertical proportions of these buildings.

(g) Alterations and additions are to be confined to the rear of dwellings to retain the scale and massing of front elevations.

(h) -

(i) Use simple pitched roof forms where they are the dominant feature of

existing streetscapes…

34. The DCP contains heritage provisions in section 3.9. The objectives of these provisions are to:

(a) Ensure that heritage significance is considered for … development within heritage conservation areas, ...

(b) Enhance the character and heritage significance of … heritage conservation areas and ensure that infill development is designed to respond positively to the heritage character of adjoining and nearby buildings and features of the public domain.

35. Section 3.9.6 requires that new development in HCAs must be designed to respect neighbouring buildings and the character of the area, particularly roofscapes and window proportions. Development it to be compatible with the surrounding built form and urban pattern by addressing the HCA statement of significance and responding sympathetically to a range of factors including the type, siting, form, height, bulk, roofscape, scale, materials and details of adjoining or nearby contributory buildings.

36. Section 3.9.7 states that contributory buildings are buildings that make an important and significant contribution to the character and significance of HCAs. They have a reasonable to high degree of integrity and date from a key development period of significance in the HCA. They are highly or substantially intact or are altered yet recognisable and reversible. The DCP requires that contributory buildings be retained unless the consent authority determines the replacement is justified in exceptional circumstances.

37. Relevantly, alterations and additions must not significantly alter the appearance of principal and significant facades, respect significant original or characteristic built form, retain significant fabric and significant features and building elements (including but not limited to original balconies, verandas and chimneys), and use appropriate materials, finishes and colours. Where an addition is proposed, significant external elements are to be reinstated.

38. In Section 4, the DCP designates that properties fronting the eastern side of Baptist Street have a maximum height of 2 storeys north of Zamia Street and of 1 storey south. The stated objectives for having a storey control are to:

(a) Ensure development reinforces the existing and desired neighbourhood

character with an appropriate height in storeys and street frontage height in

storeys.

(b) Ensure development in heritage conservation areas relate to the existing

neighbourhood character in terms of height in storeys and street frontage

height in storeys.

(c) Retain and conserve the principle building form and its relationship to the

street for heritage items and contributory buildings in heritage conservation

areas.

39. The maximum storey height can only be achieved where proposed development reinforces the existing and desired neighbourhood character, is consistent with the character, scale and form of surrounding buildings in the HCA, and does not detract from the character, and significance of, the existing building. Section 4.1.1(4) requires that, in a HCA, any additional storey must not be visible above the ridge line or parapet of the existing building on the primary street frontage

40. Section 4.1.4 – Additions and alterations contains objectives as follows:

(a) Achieve sympathetic development and maintain the fabric of existing terraces.

(b) Protect and respect the traditional character and heritage significance of

heritage items and heritage conservation areas and contributory buildings by:

(i) ensuring additions are of an appropriate scale and appearance and

relate to the scale and character of the existing building and the street;

(ii) minimising alteration of the original building and respecting the uniformity of an intact pair, group or row of buildings.

41. Section 4.1.4.6 states that upper floor additions to the rear that retain the main form of a building and do not exceed the main roof ridge height are generally more acceptable than changes that alter the height, scale or form of the original building whilst converting an existing roof space for a useable attic is not an additional storey. Subsection (1) states:

(1) Additional storeys to the main building or street frontage are generally not

supported where:

(a) a building is part of an intact group or streetscape;

(b) the existing building height is comparable to a consistent or

predominant building height in the streetscape; or

(c) the character of an area is part of its heritage significance and the

additional storey would compromise the character.

(2) Additional storeys are to respect the height of the parapet or ridge line of

immediately adjoining buildings.

(3) Additional storeys located behind parapets to buildings with flat or skillion

roofs are only appropriate where the addition:

(a) will not be visible from the surrounding streets and lanes, and

(b) will not have an adverse impact upon the uniformity of a group, row or semi-pair of buildings.

(4) Where the rear of a terrace group displays a consistent form and strong

rhythm visible from a public space, additions are restricted to the ground

floor.

42. At s 4.1.5, the DCP requires that original roofing materials on contributory buildings in HCAs are retained, unless it can be demonstrated that significant deterioration has occurred and repair is not practical. New materials are to match original materials as closely as possible. Section 4.1.5.1 states:

(1) Roof alterations and additions must:

(a) complement the details and materials of the original roof;

(b) not detract from the architectural integrity of the principal elevation of a heritage item, contributory building, or an intact group of buildings in a heritage conservation area; and

(c) respect the form, pitch, eaves and ridge heights of the original

building.

(2) Roof additions are to be set below the ridge line to allow the original form of the main roof to be clearly discerned.

(3) The existing ridgeline of the building is to be maintained and not raised to

accommodate a roof addition.

(4) Roof additions are not to include inset balconies, roof terraces or external

staircases.

(5) Roof additions are not permitted on buildings with front or side parapets

where the addition will adversely affect the silhouette of the parapet line.

(6) Windows in roof extensions must relate to the proportion and orientation of

original windows in the building.

The issues

43. The proposal, at 9.2 metres and 3 storeys, exceeds the maximum permissible height of 9 metres under the LEP and of 2 storeys under the DCP.

44. The proposal initially had an FSR of 1.26:1 which exceeded the permitted maximum FSR under the LEP of 1:1. Following revisions to the plans, and agreement on the floor space calculation, the proposed FSR was 1.23:1, being a 23% or 28m² exceedance.

45. The Council considered the height and FSR exceedances resulted in a third storey and development form which had adverse heritage outcomes for the site and the HCA creating detrimental bulk and massing at a height clearly visible from the public domain.

46. Whilst no heritage concerns were raised with the ground level rear extension or garage, the Council contended that the third storey addition was unsympathetic to the building form and character of the existing terrace, would be a foreign and discordant element on the roof, and would alter the facades. Accordingly, it would be detrimental to, rather than enhance, the character of the HCA.

47. In this regard, the third storey would be visible from Baptist Street, Zamia Street and Kepos Lane and the Council contended that this visibility would detract from the significance of the contributory building, the other item in the pair at 109 Baptist Street, and the surrounding HCA.

48. The Council did not consider that the cl 4.6 requests justified the height and FSR exceedances sought, even when updated requests were lodged in response to amendments to the proposal.

49. In this regard, the Council contended that the proposal did not comply with objective (d) of cl 4.4 of the LEP as it did not reflect the desired character of the locality and would have adverse heritage impacts on the site and on the surrounding HCA. It also did not achieve objectives (a) and (b) of cl 4.3(1) which require that the height is appropriate to the conditions of the site and its context and that there is an appropriate height transition between new development and buildings in HCAs. What is proposed will mean that the third floor addition sits above the parapet of the site and of the adjoining item in the terrace pair.

50. Furthermore, the Council contended that the lodged requests did not adequately demonstrate why compliance with the standards was unreasonable or unnecessary. Further, they did not provide sufficient environmental planning grounds to justify the contraventions sought. The breach of the height and FSR controls resulted in a third storey which would have adverse heritage outcomes. This did not represent a better outcome as required by the objectives in cl 4.6(1).

51. The Council also contended that:

1. The upper level addition was not an ‘attic’ as defined in the DCP being not wholly contained within the roof form. As a third storey, the development would not reinforce the existing and desired future character or be consistent with the character, scale and form of the surrounding buildings within the HCA as required by the DCP at s 2.13.4. It also failed to conserve the principal building form and its relationship to the street. Similarly, it did not comply with s 3.9.6 in terms of responding to the character of the area, in particular to the scale, form and roofscape of the host and adjoining buildings.

2. The proposal did not comply with objectives (a) and (b) of cl 5.10 of the LEP failing to conserve the significance of the HCA, including associated fabric, settings and views. Nor did it meet the principles of the DCP Locality Statement as it did not respond to or complement the subject or adjoining contributory buildings. The third storey would also adversely affect the silhouette of the front and side parapet lines.

3. The development did not comply with s 3.9.7 of the DCP which does not support additional storeys to contributory buildings in HCAs where the additional storey is outside the main roof ridge height and compromises streetscapes.

4. The design excellence requirements of the LEP at cl 6.21 were not met as the development failed to address heritage issues including preserving significant roofscapes and did not have appropriate design materials or detailing to the terrace and the location. The excess FSR and height also represented an overdevelopment of the site.

5. The proposal was not in the public interest being contrary to s79C(1) of the Act as it was contrary to the provisions of relevant planning instruments and had raised public concern from an adjoining owner/occupier with regards to the impact on the HCA and non-compliances with the development standards.

The Evidence

52. The heritage experts agreed that the terrace has a front and a side parapet, that its roof form (a skillion hidden behind the parapets) is different from other pitched roofed dwellings in the street, and that there are other parapet fronted terrace pairs in the same terrace row.

53. These experts also agreed that the proposal would result in the full removal of the existing roof and that the chimneys on the roof shared with 109 Baptist Street should be retained.

54. The amendments undertaken to the original application were agreed by all of the experts to be an improvement in terms of the sloping roof and the deletion of windows facing Zamia Street. However, the experts did not agree on the acceptability of the heritage impacts and of the variations sought to the FSR and height standards.

Clause 4.6 requests for FSR and height exceedances

55. The cl 4.6 request for the FSR, as amended, claimed the exceedance was justified, and that compliance with the FSR standard was unreasonable or unnecessary, for the following reasons:

1. The proposed variation is consistent with the northern neighbouring property at 107 Baptist Street which gained approval for an FSR of 1.1:1 in 2013. More recently an approval was granted for a proposal at 51 Baptist Street, north of the site, with an FSR of 1.17:1. It is also consistent with numerous other examples where the Council has approved FSR variations.

2. The additional floor space at the upper level is a recessive and minor element when viewed against the extent of built form below.

3. The sloping roof form of the addition when viewed from the south, the minor dormer element to the east, and the lack of visibility from Baptist Street, ensure that the proposed built form will not have any adverse or unreasonable streetscape or visual bulk impacts.

4. The additional floor space does not generate any adverse amenity impacts on neighbouring dwellings in terms of privacy, overlooking, overshadowing or visual bulk.

5. All of the objectives of the zone and standard are met and the FSR will be consistent with state and regional planning policies. In terms of the standard objective d), disputed as not being met, the extent of the built form that is visible is consistent and compatible with the built form that is evident on nearby terraces.

6. The variation allows for a better planning outcome as it will enable upgrading of the existing dwelling to significantly improve the internal amenity of the dwelling for its occupants. This includes providing additional solar access and natural ventilation opportunities with limited amenity impacts on neighbouring properties.

7. There are sufficient environmental planning grounds for the variation as there will be no adverse impacts arising from it, including on the HCA. As there are no public views or detrimental streetscape or community outcomes associated with the variation, and it meets the zone and standard objectives, it is in the public interest to allow it. Further, there is no public benefit in maintaining the FSR standard given the limited amenity impacts and the retention of the contributory streetscape outcome within the Baptist Street conservation area.

56. The cl 4.6 request to exceed the height claimed that strict compliance with the development standard was unreasonable or unnecessary for the following reasons:

1. The extent of the variation, being 0.2 m from the existing ground level or 0.5 m from the natural ground level, is minor and indiscernible given the recessed nature of the proposed height variation.

2. The sloping roof associated with the upper level ensures that the addition will be perceived as a minor element when viewed from vantage points to the south along Zamia Street whilst the modest dormer on the rear elevation provides for a compatible and subservient relationship to the terrace two properties to the north at 107 Baptist Street. Height and FSR breaches were also allowed at 107 Baptist Street similar to that proposed.

3. The additional height will not be visible in front of the dwelling from the same or opposite side of Baptist Street and it will only be viewed obliquely from the south and south east ensuring it will not be prominent in the streetscape nor readily visible from the park to the south east.

4. There are no shadow, privacy or view loss impacts associated with the proposed height.

5. The extension will appear as a minor, recessed element at the third floor level which is characteristic with other additions which are commonplace in the HCA. This is evident in the immediate vicinity including two properties to the north, 107 Baptist Street, and those to the east across Kepos Lane.

6. The additional height will allow for an additional bedroom (or living area) which will enjoy a high level of amenity and which will contribute positively to the overall standard of amenity to the dwelling. It will also promote work from home opportunities creating sustainable outcomes and provide the added amenity in a respectful manner.

7. Whilst not relying on the established trees along Zamia and Baptist Streets to conceal the height, nevertheless these trees, with or without foliage, limit the extent of built form that will be visible.

8. The development meets the objectives of the zone. In terms of the objectives of the height standard, including to ensure the height is appropriate to the condition of the site and its context, the modest nature of the addition and its limited visibility from all vantage points ensures that the integrity of the terraces are retained.

9. The height controls allow for two storeys with an attic at the third level. The proposal is thereby consistent with the form and scale of development that exists and which is contemplated by the controls thus reflecting the desired future character of the area.

10. In terms of objective b) of the standard, the minor and indiscernible nature of the height variation, along with its recessive form, ensures that it will have a positive contribution to the HCA.

11. The site is not heritage listed nor is it proximal to any heritage items.

12. The variation allows for a better planning outcome in a manner which is consistent with that in the immediate vicinity and as contemplated by the controls.

13. There are therefore sufficient environmental planning grounds to permit the variation. It is in the public interest as it satisfies the objectives of the zone and the standard and there are no detrimental view or streetscape outcomes as the height will not be visible from the Baptist Street streetscape. There is no public benefit in maintaining the height standard given the limited amenity impacts and the retention of the contributory streetscape outcome.

57. Should the Court not support the extent of the FSR variation, the applicant sought, as a lesser preferred outcome, a consent confined to the additional ground floor space proposed. A cl 4.6 request was also required as this ground level extension results in an FSR of 1.07:1 being an exceedance of 9m², or 7%, of the numerical FSR standard.

58. The cl 4.6 request for additional ground level floor space only raises similar justification to that provided for the greater FSR exceedance. However, it notes that the additional floor space at the ground level would not be discernible from any surrounding public or private space including adjacent streets as it is located to the north of the existing rear built form. It would also not be visible from the neighbouring property at 109 Baptist Street as it is a single storey extension which will not protrude above the dividing fence.

59. The request for the ground floor extension also argued that the exceedance was reasonable as it will have less FSR than the neighbouring properties at 51 and 107 Baptist Street. It will allow for additional solar access and natural ventilation opportunities to the dwelling and will not have any adverse impacts on the HCA nor any amenity impacts to neighbouring dwellings. It will upgrade the living area of the existing terrace providing improved internal amenity for the occupants. The zone and standard objectives are met and the addition would be consistent with the desired future character of the locality. It would therefore be a better planning outcome for and from development and therefore also be in the public interest. There would be no public benefit in enforcing the standard in the circumstances.

60. The Council supported the cl 4.6 request for the minor FSR exceedance arising from the ground floor extension. The Council also accepted that the development, including the third storey, met the objectives of the zone and would not result in amenity impacts for neighbours.

61. However, the Council did not consider that the cl 4.6 request for the additional third level floor space justified the resultant breaches to both the FSR and the height standards. It was also noted that no submission had been made justifying the numerous non-compliances with the DCP albeit the DCP requires this.

62. The Council argued that the cl 4.6 requests for the third storey did not adequately demonstrate why compliance with the two standards was unreasonable or unnecessary in the circumstances, nor demonstrate that there were sufficient environmental planning grounds to justify the contravention of the standards which would result in adverse heritage outcomes for the site and for the surrounding HCA. It would therefore result in a poor, rather than a better, planning outcome.

63. In this regard, Ms Dyer argued that the request did not demonstrate how the height standard objectives (a) and (b) at cl 4.3(1) of the LEP were met. The planning experts agreed that the addition would be visible from the public domain. She argued it would therefore add bulk at a new third floor of the existing terrace, will sit above the parapet line and would therefore not be transitional in height. Further, the integrity of the terrace as it currently stands would not be retained and the development would not be in accordance with the desired future character required by objective (d) of the FSR standard.

64. Ms Dyer also argued that the third level element was not discrete as it would be visible from the public domain and therefore be a discordant element as a third level relative to the two storey terrace row in which it sits. Furthermore, the third storey is not a rear roof addition and therefore is inconsistent with the form of development permitted by the controls. In this regard, it was inappropriate to rely on 51 and 107 Baptist Street, which have approved height and FSR breaches, as these developments were for rear roof additions in pitched roofs consistent with the DCP controls.

65. Ms Dyer did not consider the new third level to be minor or indiscernible as claimed nor that it would make a positive contribution to the HCA but could only detract from the existing building and surrounding HCA, noting the proposal also necessitates the removal of the existing roof.

66. In oral evidence, the applicant provided documentation indicating that the Council had supported recent visible FSR and height exceedances at 147 Baptist Street, 85 Kepos Street and 238-248 Riley Street, all also within the HCA.

67. Ms Dyer was not familiar with these approvals. However, it appears that the additional storey at 147 Baptist Street was contained within the existing roof form at the rear, the extension at 85 Kepos Street was also at the rear and within the overall ridge height of the existing dwelling and the Riley Street application was for a commercial building, albeit also on a corner, and the addition was lower than the existing height of the building with a range of building heights in the vicinity.

Heritage impacts

68. Mr Wang argued that the proposed third storey was not sympathetic to the existing building form and would have adverse impacts on the roofscape of the terrace row. He claimed there was no precedent for additional storeys above double storey parapet fronted terraces in the row or in adjacent rows. Furthermore, the four pairs of parapet fronted terraces fronting Baptist Street between Zamia and Telopea Streets remained highly intact.

69. There was disagreement between the heritage experts as to whether diagrams in the DCP allowed the form of upper level additions proposed and whether they could be argued as only dormers.

70. Amongst the other terraces in the row which have gable roofs, only 107 Baptist Street has a rear roof extension. However, this comprises a rear dormer which Mr Wang considered acceptable as the dormer is setback from roof boundaries and the original roof form remains discernible. By contrast, the proposed addition is not a roof extension but a new storey with a new roof.

71. Mr Oultram argued that the addition had been carefully designed to appear as rooms in the roof setback from the front and side parapets to retain these elements and allow them to remain the dominant features to the street. He considered the design sympathetic to the current terrace and argued that the existing roof can only be seen from the rear lane which was not a feature of note. Furthermore, the roof is not highly apparent due to the length of the terrace, its height, the screening by mature street trees, and the limited viewpoints. Finally, the terrace’s intactness did not prohibit changes and he noted all of the pitched roof terraces could be altered with a complying dormer to the rear.

68. Mr Oultram referenced examples of additional storeys approved by the Council which did not comply with the FSR and height controls despite being in the HCA. The examples were in Bourke, Marriott, Telopea, Redfern, George and Riley Streets.

69. Mr Oultram further contended that the fact that there was no precedent for similar additions in this area of Baptist Street was irrelevant as the Council routinely dismissed arguments of precedence when used to justify additions which do not comply with DCP controls. He argued the DCP did not prohibit the type of addition proposed although did accept that the DCP limits development to 2 storeys. Further, the terrace did not have an existing pitched roof but the design aimed to provide additional accommodation in a pitched roof form with the dormer to the rear so as to have limited impacts to the parapet form of the terrace.

70. Mr Wang noted the inventory for the Baptist Street HCA describes the area as comprising highly consistent rows of terraces that are predominantly intact. The current height controls in metres and storeys reflect the intent to keep this character. As the intact terrace row to Baptist Street has no 3 storey buildings or third storey additions, the proposal does not sensibly relate to the existing character of the HCA. Furthermore, the third storey would alter the building appearance on its rear elevation visible from Kepos Lane and will affect the parapet line of the side elevation visible from Zamia Street.

71. Mr Wang also noted that other examples cited of excess height and FSR did not have stepping parapets, weren’t on corners and/or had different contexts.

72. Mr Oultram agreed the terraces in the area generally exhibited consistency and intactness but contended that the subject terrace showed degrees of change to the front elevation and many of the terraces in the area had been altered in a variety of ways. Further, the controls allowed changes regardless of intactness and consistency including allowing three levels. Examples were given in the HCA.

73. However, Mr Wang reiterated that the proposed third storey is not the conversion of an existing roof space to create a third level. It results in the loss of the original roof and height of the original building and therefore will have a negative impact on the consistency of the terrace pair and the whole terrace row between Zamia and Telopea Streets. This row is bookended by two pairs of parapet fronted terraces with the four pairs of parapet fronted terraces symmetrically separated by gable roof terraces. The symmetrical alternation of roof forms (parapet fronted and gable roof) reinforces the consistency and significance of the terrace row. Any addition should not result in a change to this established consistency.

74. Mr Wang also argued that the uniformity of the row is also demonstrated at the rear to Kepos Lane, where there are consistent single storey garages or fences and the intact paired double storey wings and roofs are notable. Only 107 Baptist Street has a rear extension but the original roof form remains discernible. The consistency of the rows’ roofscape can be maintained even if other gable roofed terraces have rear dormers in accordance with the DCP controls. If this addition was permitted, there would be no guarantee what types of third storey additions may be made to other terraces and the consistency and integrity of the row would be detrimentally jeopardised.

75. Mr Oultram contended that there was no straight-on viewpoint where the row can be viewed as a whole and, in angled views along the street, the pattern of the row is not apparent. The row has varying primary roof forms to the rear but the pattern is not highly apparent apart from the rear skillion wings. Furthermore, the locality statement only calls for the protection of the streetscape character – in this instance the high gabled parapet and stepped side parapet – and this is maintained. The proposal follows the pitched roof form which is the dominant feature of the existing streetscape as is required by the DCP.

76. Mr Wang argued that the development did not comply with s 4.1.5.1 of the DCP which requires roof additions to be set below the ridgeline to allow the original form of the main roof to be clearly discernible, and that roof additions are not permitted on buildings with front or side parapets where the addition will adversely affect the silhouette of the parapet line.

77. Mr Oultram argued that the terrace has no ridge but there are ridges to the pitched terraces in the row, and the addition will be below these ridges. It will have no impact on the silhouette of the front parapet and a very limited impact on the side parapet with the additional setback and sloping roof form. Furthermore, the DCP clear anticipates changes to skillion roof forms of both single and two storey dwellings

78. In terms of the impact on the on the terrace itself, Mr Wang argued that the original roof is part of the significant fabric of the contributory building and its complete removal is not desirable and will have a negative impact on the significance of the building particularly as it is paired with its neighbour and there is no party wall rising above the roof. Furthermore the freestanding chimneys astride the party walls could be affected.

79. Mr Oultram disputed that the skillion roof was significant given it could not be seen from Baptist Street, is setback behind the parapet, and is of ordinary construction. Furthermore any construction issues related to the impact on the neighbouring terrace could be conditioned to ensure it is acceptable. He considered that the chimneys could be retained noting they could only be seen from the rear lane and were not a prominent feature of the roofscape being set below the front parapet height and not seen in silhouette.

80. The applicant also argued that the existing mature street trees were part of the heritage and streetscape value in the area and would therefore likely need to be maintained. They were part of the site’s context and would greatly assist in reducing any visual impact of the proposed third storey addition.

Height exceedance

85. The planning experts agreed that the proposal constitutes 3 storeys relative to a DCP permitted maximum of 2 storeys and has a maximum height as defined under the LEP of 9.5m where the LEP maximum permissible is 9m.

86. As with the heritage experts, the planning experts disagreed on the acceptability of the height proposed. It was agreed that the third storey would be visible from adjoining streets albeit it was lower than the highest point of the existing parapet on Baptist Street.

87. Ms Dyer argued that the third storey was not appropriate for the site and the surrounding context. The site is located in a visually prominent position on the corner of Zamia and Baptist Streets. Modelling by the Council indicated it would be visible from the public domain. Whilst acknowledging that the third storey would not be visible directly in front of the site in Baptist Street, she argued that it would be visible from parts of Baptist Street, from Zamia Street and from Kepos Lane, confirmed by 3D images submitted by the applicant.

88. Ms Dyer contended that the third storey added bulk and did not respect the height of the existing parapet. Therefore, the objective under clause 4.3 (1)(a), which requires that the height be appropriate to the condition of the site and its context, cannot be achieved.

89. Ms Dyer also argued that the height did not offer an appropriate transition between the proposed addition and the adjoining buildings within the row or in the surrounding HCA as Mr Wang has already indicated. It is therefore not consistent with the existing streetscape.

90. In this regard, Ms Dyer noted that the roof addition at 107 Baptist Street is at the rear and comprises an attic within an existing pitched roof except for the dormer and therefore met the attic definition and DCP controls. In contrast, the development is not consistent with the form permitted by the DCP whereby additions retain the original building form and are set down from the existing ridgeline, up from the existing gutter line and in from both sides. The proposed addition is an entirely new level not set within the existing roof, not set in from the sides and not set up from the gutter line.

91. Ms Dyer also argued that the addition did not comply with the requirement in the DCP that an additional storey in a HCA must not be visible above the parapet of an existing building on the primary street frontage. Whilst it may not be visible immediately in front of the terrace it would be visible at other locations in Baptist Street including from the bus stop diagonally opposite.

92. She concluded that the proposed third storey is inconsistent with the existing and desired surrounding character. The existing ridgelines and parapet heights have been preserved in the terrace row which has a predominant two storey building form consistent with the existing height and storey controls. As such, the objectives under DCP s 4.1.1 (a) and (b) are not achieved. Further, the proposal does not retain or conserve the principal building form so the objective at s 4.1.1 (c) is also not met.

93. Mr Betros largely reiterated the applicant’s arguments contained in the cl 4.6 variation request which he had prepared. In particular, that the proposal (as amended) significantly reduced the visibility of the third storey from the public domain which would appear as a minor and recessive development in the streetscape compatible with other attic additions at the third level.

94. Mr Betros did not consider that the mere visibility of the upper level from the public domain made it unacceptable noting numerous attic additions at the third level which are visible from the public domain. He argued what was proposed was compatible with such additions in the immediate vicinity of the site. Furthermore, a casual observer would not be offended by the proposal which would essentially be perceived as an addition within a roof form. Importantly, he argued, the integrity of the street facing primary elevation to Baptist Street would be unaffected and it is typical that additions be added as a third level for 2 storeys terraces with the additions consistent with attic additions and dormer windows.

95. Mr Betros reiterated that there were no amenity impacts arising from the proposed variation to the height which he considered to be minor.

FSR exceedance

96. The Council contended that the excess floor space at the third level could not be supported as it resulted in the non-compliant height as a result of overdevelopment of the site which would be inconsistent with the desired future character of the locality and have adverse heritage and streetscape impacts. Not all of the excess floor space is provided at the third floor. The bulk of the proposed development is at the ground floor at the rear and was not opposed by the Council.

97. The applicant largely relied on the arguments in the submitted cl 4.6 request to justify the FSR non-compliance. Mr Betros also argued that amendments to the design of the upper level floor space were more sympathetic to the streetscape and reduced the visible bulk. He reiterated that the additional floor space would add significant amenity for the occupants of the terrace without adverse amenity impacts to neighbours.

98. Mr Betros also argued that a compliant third level with dormers would have the same bulk outcome as the proposed third storey and that some of the excess floor space was a result of the internal staircase which did not add to the bulk. Furthermore, the small site area resulted in small amounts of floor space translating to significant increases in the FSR.

99. The experts also agreed that relocating the upper level excess floor space to an enlarged ground floor extension was not desirable as it would likely have adverse impacts for the neighbour and reduce the already small area of private open space on the site thus reducing the amenity for the occupants.

Findings

100. This appeal arose from the Council’s concern with the heritage impacts of a third storey to an existing terrace resulting from exceedences sought to the FSR and height controls.

101. The site is constrained by the fact that it has three street frontages to address, including a highly visible side elevation to Zamia Street. Additional floor space and amenity can and would be provided by the additional floor space proposed at the ground floor rear extension which the Council is prepared to support notwithstanding this still results in an excess FSR. This ground level additional floor space does not result in any height breach or visible third level. Therefore it will not have heritage impacts on the terrace, the streetscape or the HCA.

102. Largely as a result of the three street frontages, it is the case however, that wherever additional floor space is proposed beyond that already sought at the ground floor, it would have a degree of external impact or, if provided as a greater ground level extension, adverse impacts for the neighbour and for the occupants (in terms of reduced private open space).

103. It was agreed by the experts that the proposed third level is not an attic by definition and therefore not supported by the DCP being a third storey element in a HCA of predominantly single and two storey terraces where the DCP height control is 2 storeys. It is solely to facilitate non-compliant floor space, in addition to excess floor space already proposed at the ground floor, and leads to height breaches in metres and in storeys.

104. I am not satisfied that the clause 4.6 requests, or the circumstances, justify the exceptions to the standards which result in a third storey. Largely for the reasons argued by the Council, in my view, the requests do not demonstrate that compliance with the height and FSR standards is unreasonable or unnecessary in the circumstances for the extent of non-compliances sought.

105. In my view, there are insufficient planning grounds to exceed the FSR standard which of itself creates the height breach. This is not a better planning outcome from development than a compliant development could achieve. Nor can I conclude that the development reflects the desired future character of the area as required by the FSR standard objectives.

106. The amenity of the terrace as it exists, and as is proposed with the rear ground level extension, does not indicate to me that additional FSR or height breaches resulting from a third storey are warranted or necessary.

107. The only benefit of the additional floor space, height and storey sought is to add additional amenity to the terrace for the occupants by way of a fourth bedroom, but this is not a sufficient basis to grant the variations sought.

108. I do not agree with the statement in the FSR cl 4.6 request that the additional floor space results in a visible built form that is consistent and compatible with the extent of built form that is evident on nearby terraces. The proposed upper level floor space adds an additional storey to that existing elsewhere in the adjoining row breaching the height and storey controls. The portion of the new excess floor space that will be visible is therefore not consistent and compatible with the built form that is envisaged by the controls or evident on nearby terraces in particular those in the relatively intact row in which it is situated, on any other of the sites on the corner in which it is located, or in any other terraces in the Baptist Street streetscape in the immediate vicinity of this site.

109. I also therefore can not conclude that the height of development is appropriate to the condition of the site and its context as is required by the height standard objectives.

110. Whilst I accept there have been circumstances where other buildings in the HCA have additional levels or storeys and/or non-compliant FSR, the details and circumstances of these developments are not conclusive of a supporting precedent and were justified for reasons that differ from this application. Furthermore, the FSR proposed in this application at 1.23:1 is greater than the FSRs approved at either 107 Baptist Street (1.1:1) or 51 Baptist Street (1.17:1) despite the applicant’s reliance on these two approvals to establish precedence and even before the built form outcome of these exceedences is considered. In any event, each application must be considered on its merits.

111. I also do not accept the suggestion in the cl 4.6 request that the height standard has been abandoned. The basis for other examples of excess height (and FSR) were not definitive as to why variations were granted nor were the approved variations so prevalent to suggest the Council has abandoned the control. The view and the evidence indicated the contrary, that the height controls, including the storey control, have largely been enforced for the majority of the adjacent viewed streetscapes, particularly in Baptist Street.

112. Whilst the visual and physical impacts from a third storey may be limited, they are avoidable by a compliant development and therefore are unnecessary. They include removal of the original roof to introduce a new storey visible from each of the surrounding streets. Notwithstanding the visual impacts may have been minimised, they nevertheless will arise directly as a result of non-compliances with the two core controls of height and FSR.

113. A new third storey in this location also does not meet the objectives of the DCP in terms of enhancing the character and heritage significance of the conservation area in which the site is located. It also therefore cannot be said to make a positive contribution to the HCA.

114. Nor does the development meet the DCP requirements for contributory buildings in the HCA of respecting the uniformity of an intact pair or reinforcing the existing and desired future character which comprises predominantly intact terraces to a maximum of two storeys, where occasional attics have been permitted at the third level but generally at the rear within existing roofscapes, as the DCP permits.

115. The DCP is clear that additional storeys will not generally be supported where the building is part of an intact group or streetscape, as in this case, or the existing height is comparable to a consistent or predominate height in the streetscape (also the case) or the character of an area is part of its heritage significance and the additional storey would compromise the character (also the case). Therefore the proposed third storey fails on all three scenarios.

116. The DCP also requires that, where the rear of a terrace group displays a consistent form and strong rhythm visible from a public space, additions are restricted to the ground floor. In my view, despite the addition to No. 107, the rear of the terraces in the row in which the site is located do generally display a consistent form and strong rhythm to Kepos Lane and the rear of the third storey addition would be visible from that lane. It would also disrupt the silhouette of the side parapet when viewed from Zamia Street and the Baptist Street/Zamia Street corner, including from the bus stop on Baptist Street.

117. In this regard, I am required to consider the effect the development would have on the conservation area in which it is located under LEP cl 5.10 (4). In doing so, I have concluded that it will have an adverse effect on the HCA and the streetscape when assessed under the provisions of cl 5.10 albeit I accept that the applicant has endeavoured to minimise the adverse impact in terms of the amended design.

118. I have therefore formed the view that there is public benefit in maintaining the height standard to preserve the existing streetscape when viewed from the three adjacent streets within the HCA. The development cannot rely on the existing street trees to remain in terms of restricting visual impact and it is the case that none of the other developments on the three remaining corners exceed two storeys. The site is therefore unfortunately constrained by its visual prominence on the corner of two streets, with a lane also at the rear, and by the intactness of the terrace row in this part of the HCA.

100. Accordingly, I find that it cannot be in the public interest to grant the variations sought. The site is not so constrained that additional floor space cannot be provided without a third storey, as the ground level proposed additional floor space demonstrates, and the only real basis given to justify this excess floor space and resultant height breach is that the applicant desires it.

101. Whilst I agree that the provisions of the DCP must be flexibly applied, the development does not even meet the core LEP standards of height and FSR irrespective of whether any or all of the DCP controls are met. These core LEP standards have a purpose and role to play as the Court has previously determined. There are simply insufficient environmental planning grounds to justify departing from them in this instance.

102. I do however, accept that there is justification for the rear ground floor extension to be approved notwithstanding the slight FSR exceedance that still results. The exceedance is minor at only 9m² and there will be no visual impacts and no adverse heritage impacts. It will provide additional amenity for the occupants resulting in a better outcome for the development of the site whilst not causing adverse impacts from that development. It therefore meets the objectives of both the zone and the standard and does not offend any HCA or other development controls of the DCP. The cl 4.6 request lodged for this floor space justifies the variation which was also supported by the Council.

103. Approval to the addition at the ground floor only is therefore approved as is the cl 4.6 request for the excess FSR associated with this ground floor extension. The upper level, third storey, extension is not approved.

104. Whilst the conditions of consent were agreed, they were based on the application including the third storey, as were the amended plans. In order to give effect to my findings, revised plans deleting the third storey, an updated BASIX certificate, and revised conditions reflecting these amended plans are required. Subject to provision of these documents, orders giving final approval to the application will be made in chambers.

Directions

124. The Court directs that:

1. The applicant is to file amended plans, both in hard copy and PDF format that reflect the findings, within 14 days along with an updated BASIX certificate.

2. The Council is to file and serve, in Word format, updated conditions of consent amended to reflect the design changes within 14 days of receipt of the amended plans referred to in (1).

3. On receipt of these documents, final orders will be made in Chambers.

Addendum made on 16 March, 2018

Orders

125. In accordance with the terms of directions in paragraph 124 of my judgment of 22 February, 2018 the parties provided me with the revised plans, updated BASIX certificate and revised conditions of consent. I am satisfied firstly that consent to the application should be granted, as the appeal is an appeal under then s97(1) of the Environmental Planning and Assessment Act 1979, and that the documents provided and conditions of consent, as I have made minor amendments to those conditions, accord with my findings. Accordingly I make orders in chambers as follows:

1. The applicant is granted leave to rely on amended plans.

2. The Court approves the clause 4.6 variation of the development control for Floor Space Ratio set out in clause 4.4 of the Sydney Local Environmental Plan 2012.

3. The appeal is upheld.

4. Development consent is granted to Development Application D/2016/1760 for alterations and additions to an existing dwelling house at 1A Zamia Street, Redfern subject to the conditions in Annexure A.

5. The exhibits are returned other than exhibits A, G and 1.

_________________

Jenny Smithson

Commissioner of the Court

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Amendments

04 April 2018 - corrected formatting

Decision last updated: 04 April 2018