Savage Property Enterprises v Orange City Council

[2008] NSWLEC 1336

Land and Environment Court

of New South Wales

CITATION:

Savage Property Enterprises v Orange City Council [2008] NSWLEC 1336

PARTIES:

APPLICANT
Savage Property Enterprises

RESPONDENT
Orange City Council

FILE NUMBER(S):

10259 of 2008

CORAM:

Tuor C

KEY ISSUES:

Development Application :- Demolish houses, part demolish and alterations and additions to another building, construct a new 4 storey commercial building with basement car parking.
Impact on heritage significance of Conservation Area
Height, bulk and scale
Impact on residential amenity

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Orange Local Environmental Plan 2000
Orange Development Control Plan 2004

DATES OF HEARING:

18/08/2008 and 19/08/2008

EX TEMPORE JUDGMENT DATE:

22 August 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Ayling, SC
Instructed by Mr G. McKee
of McKee Legal Solutions

RESPONDENT
Mr J. Robson, SC
Instructed by Mr P. Crennan
of McIntosh McPhillamy & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

22 August 2008

10259 of 2008 Savage Property Enterprises v Orange City Council

JUDGMENT

1 This is an appeal against the refusal by Orange City Council (council) of a development application (401/2007) under the Environmental Planning and Assessment Act 1979 for demolition of the buildings at 65 Hill Street and 66 Summer Street, part demolition and alterations and additions to 68 Summer Street and construction of a new four storey commercial building with basement parking for 57 cars (the site).

2 The key issue between the parties was whether the height, bulk and scale of the proposal would adversely affect the existing building at 68 Summer Street and the conservation area.

3 A s34 conference was held on 23 May 2008 at which no agreement was reached and the conference was terminated. Amended plans were prepared after the s34 conference and are the plans for which the applicant sought approval on the first day of the hearing (the plans).

4 On the second day of the hearing, prior to submissions, the parties reached agreement and sought consent orders from the Court for a deferred commencement consent incorporating further changes to the proposal.

The site and its context

5 The site is located on the corner of Hill Street and Summer Street. It has a frontage to Hill Street of 57 m (including an informal Right of Way which provides vehicular access to 63 Hill Street), a frontage of 40.36 m to Summer Street and an area of 2,300 sq m.

6 68 Summer Street was previously used as the Dudley Private Hospital. It has a three storey “Art Deco” style building on the corner of Hill and Summer Streets and a single storey building fronting Hill Street.

7 65 Hill Street and 66 Summer Street have single storey cottages, circa late 1800s.

8 Adjoining the site to the south is a single storey house (63 Hill Street). Further along on both sides of Hill Street are single storey residences predominantly used for commercial purposes. Adjoining the site to the west along Summer Street is a motel.

9 Opposite the site on each corner of the intersection of Hill and Summer Streets are a service station, car wash and house.

Planning Framework

10 65 Hill Street and 68 Summer Street are zoned 3(b) Business Services under Orange Local Environmental Plan 2000 (LEP 2000). 68 Summer Street is zoned 2(a) Urban Residential.

11 Commercial development is permissible in the 3(b) zone with consent. Pursuant to cl 26(1) commercial development is permissible on the adjoining 2(a) land but only if the criteria in cl 26(4) are met.

12 The site is within the Central Orange Conservation area. Clause 76 of LEP 2000 requires a consideration of the extent to which a development would impact on the heritage significance of the Conservation Area.

13 Orange Development Control Plan 2004 (DCP 2004) is also relevant. Part 8 addresses development in business zones and Part 13 relates to heritage. There are no specific controls such as height, setback, floor space ratio in either LEP 2000 or DCP 2004.

Evidence

14 The Court visited the site and heard resident evidence on the plans. Other objectors provided evidence in Court.

15 The principle concern of the objectors reflecting those of Council that the proposal was too big and too high and out of character with the area, particularly the sawtooth roof which they considered to be industrial in appearance.

16 Additional concerns were raised about the demolition of the existing houses which contributed to the conservation area and the adequacy of on site parking and traffic impacts. Mr Moad, on behalf of his aunt and mother, the owner of 63 Hill Street, raised concerns about the impact of the development on their residential amenity. In his opinion the proposal would result in adverse overshadowing and noise impacts and be bulky and overwhelming when viewed from their property. He was particularly concerned about the impact of the proposal on the amenity of the front porch, which is extensively used by his mother and aunt. He also raised issues about construction impacts and noise from air conditioning units.

17 Expert planning and heritage evidence on the plans was provided by Mr S Davies and Mr P Basha, for the applicant, and Mr M Neustein and Mr D Scobie, for the council.

18 Mr G White provided a report and oral evidence on the ESD performance of the upper floors of the proposal.

19 The heritage and planning experts agreed that the issues could be distilled to be bulk, height, scale and setbacks of the proposal and the appropriateness of the sawtooth roof design in a conservation area. All the experts agreed that the existing houses on the site, which contribute to the Conservation Area could be demolished if the replacement building is satisfactory. The differences of opinion are summarised in their Joint Statement.

20 Mr Davies and Mr Basha agreed that the height, bulk and scale of the proposal were inconsistent with other development in the surrounding areas, particularly residential. However they considered this to be acceptable as:

• The Conservation Area applies to be the whole of Orange CBD
• “Bulky” buildings are not uncharacteristic of the Conservation Area.
• The proposal is consistent with the scale of the existing art deco building and is appropriate for its prominent corner location.
• Architectural devices have addressed the height, bulk and scale of the new building. Due to the recessive and lightweight materials of the upper levels, the building will appear as predominantly 2 storeys.
• The sawtooth roof form reflects the functional requirements of the use and provides environmental benefits in terms of light penetration and ventilation.
• The surrounding area contains other forms of development, which are uncharacteristic of the conservation area such as the car wash.
• The area is commercial, the residential properties are predominantly used for commercial purposes and the site is orientated to the commercial CBD of Orange. Therefore a larger commercial building is appropriate.

21 Mr Neustein and Mr Scobie held the contrary opinion that:

• While there are other “bulky” buildings in the Conservation Area this does not justify such a bulky building in this location.
• The Conservation Area around Hill Street is characterised by houses on generous lots.
• The scale of the existing art deco building is uncharacteristic but is a land mark of the area.
• Development should form a transition in height and scale between this building and the single storey development along Hill and Summer Streets.
• The proposal overwhelms the existing building as it is higher and has a larger floor plate. The existing building should remain the dominant element in the corner.
• Mr Neustein considered that the 3(b) zone formed a transition between the central CBD area (zoned 3(a)) and the houses in the 2(a) zone. The proposal, would erode the hierarchy established by LEP 2000.
• Part 8 of DCP 2004 encourages the retention of the residential form of development while allowing this to be utilized for commercial purposes, which is what has occurred in Hill Street.
• Mr Neustein considered the Hill Street façade should be setback further to respond to the residential setbacks.
• The sawtooth roof is uncharacteristic of the area and out of scale with other roof forms in the Conservation Area. Any environmental benefits do not out weight the concerns about the height, bulk and scale of the development and could be achieved through other means.
• The proposal will appear higher than the existing building despite the use of lightweight and transparent materials in the sawtooth roof structure.

22 On the second day of the hearing further discussions were held between the experts and further changes were proposed. In summary these included:

• the removal of the sawtooth roof.
• deletion of the fourth storey
• greater setback of the third storey to 5.5m from the Hill Street frontage.
• The third storey to be set back 3.8m from the western boundary.
• Provision of landscaping along the southern boundary.

23 On the basis of these amendments being incorporated through a deferred commencement condition, the parties agreed to enter into consent orders.

24 The amendments were explained to the objectors. Mr Moad, Mr Greer, Mr Jones and Ms Ingham provided further evidence to the Court. The objectors supported the removal of sawtooth roof and reduction in height and increased setback but still had concerns about the proposal. In summary Mr Moad sought a further setback of the south east corner (approximately 4.7m x 6 m) to reduce the bulk of the proposal when viewed from the porch and front door and to provide greater solar access to the porch which is the area most used by his mother and aunt. He was also concerned about noise from the air conditioning plant. This is enclosed and the applicant has agreed to a condition, which specifies the noise criteria to be met and is therefore acceptable.

25 Mr Jones maintained his concern about the impact of the proposal when viewed from the west along Summer Street and that there should be increased setback of the north west corner. Ms Ingham thought landscaping should be provided along the Summer Street frontage and that a three storey building was too high. Mr Greer considered the proposal should be setback from Hill Street to align with the setback of the existing building and that the proposal was still industrial in appearance.

Findings

26 I accept the evidence of Mr Neustein and Mr Scobie that the proposal at the commencement of the hearing is of a height, bulk and scale that would have an adverse impact on the existing building and the conservation area.

27 The further amendments have largely addressed these concerns by reducing the height of the building, removing the sawtooth roof and increasing the setback to Hill Street to the satisfaction of the parties. Sketch plans, which illustrate the proposed amendments, were filed on 21 August 2008. These plans generally accord with the agreement reached between the parties with the exception of the proposed roof. The agreement did not specify a roof form to replace the sawtooth and a 5 degree pitched roof form is proposed which the applicant states is the minimum required for custom orb roofing material, will conceal services and provide light and ventilation to the third storey.

28 The site is on a prominent corner, however, due to the shallow pitch the roof form will not be visible until about 90m from the site. Mr Scobie has reviewed the amended plans and concluded that the changes, including the pitched roof form are acceptable. While I consider a flat roof (3 degree pitch) similar to that proposed for the north west corner would be preferable I accept that the proposed roof will not materially add to the height and bulk of the building and is only visible from distant views along along Hill and Summer Streets.

29 The sketch plans have also amended the fenestration detail by removing the horizontal mullions. While this is a matter of detail. The fenestration in the plans assists in breaking up and articulating the extent of the façade and should remain.

30 It is unclear from the sketch plans how the setback from the western boundary of the third floor has changed from the earlier plans, although it meets the 3.8m requirement of Council and I accept is adequate to reduce the impact of this level when viewed from the west along Summer Street. A greater setback from the western boundary of the lower levels would be desirable to provide landscaping to screen the development given the length of this façade and that this part of the site is within and fronts a 2(a) zone. However, council did not raise this as an issue and as the proposal will be largely screened by the adjoining motel development I accept that the relationship is acceptable.

31 Council did not press the concerns of the objectors as an impediment to entering into consent orders. Although Mr Robson SC, for the Council, submitted that the further setback requested by Mr Moad should be required, due to the particular circumstances, although he acknowledged this setback would not necessarily reduce overshadowing to the front porch as it is largely overshadowed at midwinter by the fence based on the overshadowing drawings. Mr Moad did not agree that the porch was overshadowed.

32 Mr Ayling SC, for the applicant, submitted that the increased setback was unnecessary as the two storey section of the proposal was setback 4.2m with the third storey setback 10.5m from the southern boundary. He noted that both the site and the Moad’s property are within the 3(b) zone and that even in a normal residential situation a two storey house would be setback only 900mm from a side boundary. In addition landscaping has been provided along the southern boundary to soften the appearance of the building. He submitted that the bulk and overshadowing impacts were acceptable. I accept Mr Ayling’s submission.

33 I do not consider that further changes to the proposal are required to address the concerns of Mr Jones and Ms Ingham. As stated above, while a greater setback to the west would be desirable, the proposal will achieve an acceptable relationship with the motel development and when viewed from the west. The ground and first floor levels of the new building are setback from Summer Street in line with the existing building, the upper level is setback further and a recess is provided where the new and old join. These measures provide an acceptable relationship with the existing building in Summer Street and maintain the appearance of the new building as predominantly two storeys.

34 The lower levels of the new building along Hill Street project forward of the existing building and the upper level, as amended, aligns with of the setback of the existing building from Summer Street with a terrace projecting forward. Mr Greer supported the concerns of Mr Neustein about the setback of the new building along Hill Street. Mr Neustein considered that the setback should respond to the setback of the residential buildings in the street rather than the existing building. Mr Davies and Mr Basha did not share these concerns and it did not form part of the agreement between the parties.

35 I do not agree that the new building should reflect the setback of the residential development as this varies along the street and the proposal is a different form of development. However, the proposal reduces the existing setback of the single storey building at 68 Summer Street which is to be demolished and it projects forward of the existing building which is to be retained. The projection of the new building will be visible from a number of vantage points both in Hill Street and Summer Street. It reduces the dominance of the existing building and its prominence as a corner element. The ground and first floor should be further setback (approximately 2.5m) to align with the Hill Street façade of the existing building with the second floor setback from the lower levels in a similar manner to the Summer Street façade (a minimum of 2m).

36 The south east corner should also be further setback (about 2.5m) to maintain the current relationship with the façade of the new building. This will also have benefits for the Moad’s property by reducing the bulk of the building, providing opportunity for greater depth of landscaping and potentially increasing solar access. It will also improve the relationship of the new building with the adjoining residential development when viewed along Hill Street.

37 This street is zoned 3(b) and the majority of houses are used for commercial purposes however, DCP 2004 encourages the maintenance of the existing character and residential form and it is therefore unlikely to change. An appropriate relationship between the new commercial development and the existing residential form is essential to ensure an acceptable impact on the Conservation Area.

38 While these additional changes will further reduce the floor area of the development I do not consider them to be unreasonable given the size of the development in relation to other development in the area and as there are no planning controls which specify a level of development which is considered to be reasonable, other than the principle requirement that development not adversely impact on the conservation area.

39 The reduction in the floor area of the proposal will consequently reduce the number of car spaces required to meet the demands of the development either on site or through a monetary contribution to provide parking elsewhere, which was raised as an issue by objectors and Mr Scobie.

40 I am not satisfied that the extent of the changes agreed to by the parties will have an acceptable impact on the Conservation Area and therefore approval of the consent orders cannot be granted.

41 The agreed amendments, subject to the further changes outlined above will maintain the prominence of the existing “art deco” building as the dominant corner element and provide an appropriate transition between the single storey houses, the new two storey building (with the third storey setback) and the three storey art deco building. With these changes I am satisfied that the proposal will have an acceptable impact on the significance of the Conservation Area and that approval could be granted. I will therefore provide the applicant with the opportunity to submit amended plans which address these matters.

Directions

42 The Court directs that:

1. The applicant is to file and serve by 3 September 2008 a full set of dimensioned plans, including a concept landscape plan which incorporate the amendments outlined in this judgement.

2. The parties are to file agreed conditions of consent by 5 September 2008.

Final orders will be issued in Chambers

___________________

Annelise Tuor
Commissioner of the Court
ljr

43 The Court orders that:

1. The appeal is upheld.
2. The development application (401/2007) to demolish 65 Hill Street, 66 Summer Street and part demolition and alterations and addition to 68 Summer Street and the construction of a new commercial building with basement parking for 57 cars is approved subject to the conditions in Annexure ‘A’.
3. The exhibits, except exhibits may be returned.

___________________

Annelise Tuor
Commissioner of the Court
ljr