Sekulovski v Inner West Council

[2024] NSWLEC 1471

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Sekulovski v Inner West Council [2024] NSWLEC 1471

Hearing dates:

24 and 25 June 2024

Date of orders:

6 August 2024

Decision date:

06 August 2024

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1)   Leave is granted to the Applicant to amend Development Application DA2022/0879 and rely upon the amended plans and documents referred to at Condition 1 of Annexure A.

(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application, as agreed or assessed.

(3)   The appeal is upheld.

(4)   Consent is granted to Development Application DA2022/0879 (as amended) for alterations and additions to an existing shop top housing development at 595 King Street, Newtown, subject to the conditions of consent at Annexure A.

(5)   The exhibits, other than 1, 3, 4, A, G and H, are returned.

Catchwords:

APPEAL – development application – shop top housing – residential apartment building development – alterations and additions – heritage conservation area – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, ss 27, 29

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, Sch 1

Inner West Sydney Local Environmental Plan 2022, cll 1.2, 2.2, 2.3, 4.3, 4.4, 4.6, 5.10, 6.9, 6.13, Sch 5

Texts Cited:

Marrickville Development Control Plan 2011

NSW Department of Planning and Environment, NSW Apartment Design Guide, 2015

NSW Department of Planning, Industry and Environment, Planning Circular PS 20-002, May 2020

Category:

Principal judgment

Parties:

Nikolce Sekulovski (Applicant)
Inner West Council (Respondent

Representation:

Counsel:
J Smith (Applicant)
D Robertson (Respondent)

Solicitors:
Storey and Gough (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2023/140210

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Nikolce Sekulovski (the Applicant), against the refusal of Development Application DA2022/0879 (the DA) by Inner West Council (the Respondent).

2. At the date of its lodgement on 17 October 2022, the DA sought consent for alterations and additions to an existing shop top housing development at 595 King Street, Newtown (the site).

3. The DA proposed works to the existing building including:

1. Provision of two areas of communal open space at the existing ground floor.

2. Provision of a privacy screen to each of two existing bedroom windows that address an internal atrium at the first and second floors.

3. Construction of a new one bedroom apartment (Unit 6) and associated private open space at the existing third floor roof level addressing King Street.

4. Upward extension of the existing stair and provision of a new lift to serve proposed communal open space situated at a new fourth floor roof level addressing King Street.

4. Prior to the hearing, on 22 May 2024, the Court granted leave to the Applicant to amend the DA.

5. These amendments - intended to resolve or reduce the number of the Respondent’s contentions - proposed the following works:

1. Provision of obscure glazing (in lieu of privacy screens) to each of two existing bedroom windows that address the internal atrium.

2. Construction of a new studio apartment (in lieu of the earlier proposed one bedroom apartment) and associated private open space at the existing third floor roof level.

6. Of significance, these amendments also have the effect of omitting earlier proposed communal open space at the ground floor and at the new fourth floor roof level, and - by situating the proposed studio apartment at the existing third floor terrace level - would displace all existing communal open space currently provided within the building.

7. At the commencement of the hearing on 24 June 2024, by way of Notice of Motion, I granted leave to the Applicant to further amend the DA. Leave was not opposed by the Respondent, subject to the matter of costs.

8. Accordingly, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the DA, as agreed or assessed.

9. While this final series of amendments to the DA can generally be characterised as the provision of additional information, it also includes some further design changes, intended to improve the heritage and streetscape presentation of the proposal, as follows:

1. The street-facing window within the new studio apartment is now proposed to present as two vertically proportioned double hung windows.

2. The proposed new studio apartment roof form and pitch has been amended to create a simple skillion that presents a lower leading eave line to King Street.

3. Notation to clarify that the balustrade enclosing new private open space is to be constructed of frameless clear glass.

4. The building’s date of construction, shown on the existing street-facing parapet, is to be changed from “1867” to the more accurate date of “1887”.

5. Two timber-framed awnings and bracket are proposed to be added to the two existing pairs of first floor French doors addressing King Street.

6. The replacement of the existing glazed shopfront with a new shopfront reflecting an earlier approved interpretation of a traditional shopfront.

10. Of further significance, the final amended DA now proposes that the new studio apartment (Unit 6) will be provided as “affordable housing” for a ten year period, commencing upon the date of issue of an occupation certificate.

11. The final amended architectural plans have been prepared by Liljana Ermilova (NSW registered architect 7887), marked as Revision G and dated 24 June 2024. The architectural drawings form Exhibit G in these proceedings and are the subject of the appeal.

The site and its context

12. The site is located at 595 King Street, Newtown and is legally described as Lot B in DP 443127.

13. The site is located on the western side of King Street, north of Darley Street and directly opposite the T-intersection between King Street and Bray Street. The site is located within 250m walking distance of St Peters Railway Station and the regional open space provided by Sydney Park.

14. The site has a reasonably regular rectangular geometry, with an area calculated by survey of approximately 229.5sqm. The site has a frontage to King Street of 7.24m. The southern boundary is irregular, stepping a number of times, while the northern boundary is 32.095m in length. The rear boundary addressing Maria Lane has a frontage of 6.765m.

15. The site has a relatively flat topography, with minimal changes in level evident at the site boundaries, varying between RL 20.23 along the King Street frontage and RL19.86 at the rear frontage to Maria Lane.

16. The site currently contains a part three-, part four-storey shop top housing development, constructed under consent (DA/2016/0565) granted by the Court on 15 June 2019. The existing development comprises a ground floor commercial tenancy, two apartments at the first floor, two apartments at the second floor and a single apartment at the third floor addressing the rear lane.

17. Of significance, the existing shop top development incorporates an earlier original facade into its eastern facade, consistent with the prevailing pattern of original and heritage shopfronts evident elsewhere along the southern extent of King Street.

18. The existing development is not an identified heritage item, but is located within the locally significant King Street and Enmore Road Heritage Conservation Area (HCA) as set out in Sch 5 (C73) of the Inner West Local Environmental Plan 2022 (IWLEP).

19. The King Street and Enmore Road HCA extends to the north and south of the site, encompassing each property in the local vicinity with an address to King Street. Of note, the eastern and opposite side of King Street is situated within the City of Sydney Local Government Area and properties there are subject to separate development controls and standards.

20. To the rear of the site is an existing community centre on a larger-than-typical lot that presents screening vegetation to the Maria Lane frontage.

21. Immediately to the north of the site, also addressing King Street, is a traditional two-storey shop top housing development presenting a typically composed and ornate street-facing facade with parapet.

22. Similarly, and immediately to the south of the site, addressing the corner of King Street and Darley Street, is the Botany View Hotel, a locally significant listed heritage item as set out in Sch 5 (I1328) of the IWLEP.

23. Relevant to the resolution of this dispute is a question of the streetscape character evident within the prevailing pattern of development, particularly along the western side of King Street within the King Street and Enmore Road HCA.

24. The traditional form of narrow-fronted two-storey (occasionally three-storey) shop top housing development, presenting composed and decorative parapeted facades to King Street is relatively clear and consistent.

25. Interspersed with these traditional forms is an observable pattern of more recent shop top housing development. These typically present either as taller, contemporary three-storey buildings, or as three- or four-storey development set behind a retained original facade in a manner that tends to result in the additional upper storeys appearing recessive (if not invisible) when observed from vantage points within the primary street.

The relevant planning controls

26. The key relevant statutory planning and development controls are as follows:

1. EPA Act.

2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX).

3. State Environmental Planning Policy No 65–Design Quality of Residential Apartment Development (SEPP 65).

4. IWLEP.

5. Marrickville Development Control Plan 2011 (MDCP).

27. Pursuant to cl 2.2 of the IWLEP, the site is mapped within the Zone E1 Local Centre land use area. Development for the purposes of shop top housing development is permissible with consent.

28. Pursuant to cl 4.3 of the IWLEP, the site is mapped with a development standard for maximum height of building of 14m.

29. Pursuant to cl 4.4 of the IWLEP, the site is mapped with a development standard for floor space ratio (FSR) of 1.5:1.

30. As noted previously, and pursuant to cl 5.10 and Sch 5 of the IWLEP, the site is mapped within the King Street and Enmore Road HCA (C73).

History of the DA

31. The Respondent’s Amended Statement of Facts and Contentions, dated 28 May 2024 and forming Exhibit 1 in these proceedings, sets out the history of the DA. A concise summary follows.

32. The DA was lodged by the Applicant with the Respondent on 17 October 2022.

33. The DA was publicly exhibited by the Respondent between 9 and 30 November 2022. No submissions were received by the Respondent.

34. The DA was reviewed by the Respondent’s Architectural Excellence Panel, which did not support the proposal, noting concerns for:

1. The exceedance of building height control (16.54m proposed where the development standard specifies 14m) and FSR (2.16:1 proposed where development standard specifies 1.5:1).

2. The potential for the DA to unreasonably diminish the amenity available to a number of existing bedrooms, which rely on the central atrium for natural light and air.

3. Potential visual and acoustic privacy impacts upon these same existing bedrooms arising from the further intensification and increased use of adjacent common circulation spaces.

4. Potential fire and life safety issues arising from the central atrium, which serves as emergency egress.

5. The low level of amenity available to the proposed communal open space, which provides no landscaping, shade or common facilities.

6. The potential for roof water drainage requirements to compromise the achievement of adequate ceiling heights of 2.7m.

7. The degree to which the proposal presents blank boundary walls in elevated locations along each side boundary, and the associated impacts upon the heritage values of the HCA and existing streetscape character, particularly when viewed obliquely up and down King Street.

35. On 16 February 2023, the Respondent issued the Applicant with a letter recommending the DA be withdrawn given the exceedance of development standards for building height and FSR, and non-compliance with massing and setback controls, impacts upon the HCA and streetscape, poor internal amenity and failure to satisfy design excellence provisions set out at cl 6.9 of the IWLEP.

36. Electing not to withdraw the DA, the Applicant sought to amend the DA in an attempt to resolve the Respondent’s concerns. On 9 and 13 March 2023, the Applicant submitted amended plans and additional information intended to address the issues raised by the Respondent. The design changes at this point included:

1. Increased upper level setbacks to King Street.

2. The provision of outdoor cooking facilities, shade structures, planter beds and seating on the proposed fourth floor roof communal open space.

3. The introduction of privacy screens to existing bedrooms addressing the central atrium.

4. The introduction of two communal open space areas at ground level within the central atrium.

5. A view analysis showing the amended proposal within the streetscape from various vantage points along King Street.

37. On 18 April 2023, the DA was refused by the Inner West Local Planning Panel. The notice of determination (which forms part of Exhibit 2 in these proceedings) includes reasons for refusal which are summarised as:

1. Inconsistency with cl 1.2 - Aims of Plan - of the IWLEP given that the DA does not conserve and maintain the cultural heritage of the Inner West, does not create a high quality urban place through the application of design excellence, and does not prevent adverse environmental impacts on the local character of the Inner West.

2. Inconsistency with cl 2.3 - Zone objectives and Land Use Table - of the IWLEP given that the DA does not accommodate development that complements and promotes the role of the local centre.

3. Inconsistency with the development standard set out at cl 4.3 - Height of buildings - of the IWLEP.

4. Inconsistency with the development standard set out at cl 4.4 - Floor space ratio - of the IWLEP.

5. Inconsistency with cl 5.10 - Heritage conservation - of the IWLEP given that the DA does not conserve the environmental heritage of the Inner West, and the DA does not to conserve the heritage significance of the HCA, in particular, settings and views.

6. Inconsistency with cl 6.9 - Design excellence - of the IWLEP given that the DA does not exhibit design excellence.

7. Inconsistency with cl 6.13 - Residential accommodation in Zones E1, E2 and MU1 - of the IWLEP given that the bulk, form and scale of the DA is not considered to be compatible with the desired future character of the area.

8. Inconsistency with various provisions of the MDCP.

9. Inconsistency with various provisions of SEPP 65, particularly the Design quality principles set out at Sch 1.

38. On 2 May 2023, the Applicant appealed to the Court against the Respondent’s refusal of the DA.

The issues

39. As noted at [4]-[11] above, the Court granted leave to the Applicant on 22 May 2024 to amend the DA and rely upon amended plans and documents. Further leave was granted during the hearing on 24 June 2024 and the final amended architectural drawings form Exhibit G in these proceedings and are the subject of the appeal.

40. The effect of the various design amendments is agreed to resolve a number of the Respondent’s contentions. Consequently, Contention 1 - Height of Building - and Contention 5 - Design Excellence - are no longer pressed. And similarly, Contention 4 - Unacceptable Amenity and Safety for Development - and Contention 6 - Inadequate Information - have narrowed.

41. Those contentions still pressed by the Respondent are found in the Amended Statement of Facts and Contentions forming Exhibit 1 in these proceedings and are set out in full below:

“FSR

2.   The Amended Application should be refused as the proposal breaches the maximum permitted FSR of 1.5:1 pursuant to Clause 4.4 of the IWLEP, and is not accompanied by a well founded Clause 4.6 written request.

Particulars

(a) The Gross Floor Area (GFA) identified in the Clause 4.6 written request submitted with the final Amended Application is 466.38sqm, results in an FSR of 2.03:1 given the site area of 229.5sqm. This is a breach of the FSR control, which permits a maximum GFA of 344.25sqm, representing an exceedance of 122.13sqm or 35.5%.

(c) The Applicant is required to demonstrate that in the circumstances of this case the exceedance is justified by way of a well-founded Clause 4.6 written request. The Applicant’s amended Clause 4.6 written request does not demonstrate compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, or that there are sufficient environmental planning grounds to justify contravening the development standards.

(d) The breach of the FSR control will have unacceptable impacts upon the amenity of the existing dwellings in the building, which is contrary to objective (d) of Clause 4.4 of IWLEP, which is “to minimise adverse impacts on local amenity”.

(e) The excessive GFA proposed, will have a detrimental impact upon the heritage significance of the King Street and Enmore Road Heritage Conservation Areas and the streetscape of King Street, Bray Street and Darley Street, contrary to the following objective of the E1 zone under IWLEP, which provides:

∙ To enhance the unique sense of place offered by Inner West local centres by ensuring buildings display architectural and urban design quality and contributes to the desired character and cultural heritage of the locality.

Unacceptable Impact Upon Streetscape and Conservation Area

3.   The Amended Application should be refused as it will have an unacceptable impact upon the streetscape of King Street, Bray Street and Darley Street and will have an unacceptable impact upon the King Street and Enmore Road Heritage Conservation Area.

Particulars

(a) The site is located within the King Street and Enmore Road Heritage Conservation Area and is identified as containing a contributory building. The adjoining building (the Botany View Hotel) is also listed as a heritage item. The proposed additions will be visible within the streetscapes of King Street, Bray Street and Darley Street and will also be inconsistent with and inappropriate within the streetscape, the HCA and the setting of the heritage item. Given the proposed and significant breach of the FSR control under Clause 4.4 of IWLEP and the breach of the building height control under Clause 4.3, the resultant impact upon the streetscape and HCA will be unacceptable and is not supported.

(b) The proposal is also contrary to objectives (a) and (b) of Clause 5.10(1) of IWLEP, which are as follows:

(a) to conserve the environmental heritage of Inner West,

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

(c) The proposal is contrary to objectives O1 to O5 of Part 8 Heritage of the MDCP, which are as follows:

O1 To conserve heritage items and maintain appropriate setting and views.

O2 To retain evidence of historic themes of development evident in the Marrickville LGA, through the proper care and maintenance of individual heritage items, HCAs and period buildings.

O3 To provide guidelines for alterations and additions which complement and do not detract from the heritage significance of individually listed heritage items, HCAs and period buildings.

O4 To protect those items, areas and buildings of value to the local community.

O5 To encourage new development which complements existing heritage items and heritage conservation areas in a modern context.

(d) The proposal is inconsistent with the desired future character, which is identified in Part 9.37.2 of the MDCP as follows:

1. To protect the identified Heritage Items within the precinct.

2. To protect the identified values of the King Street and Enmore Road Heritage Conservation Area.

3. To protect and enhance the character of streetscapes and public domain elements within the precinct including prevailing subdivision patterns, building typologies, materials and finishes, setbacks, landscaping, fencing, open space, carriageway and footpath design and kerb and guttering.

6. Where required, to protect, preserve and enhance the existing character of the streetscape, where only compatible development is permitted.

7. To ensure that the street building frontage of infill development complements the siting (location and orientation), scale, form (height, massing and setback), proportion (height to width and solid to void), rhythm, pattern, detail, material, colour, texture, style and general character in the design of the existing predominantly traditional two storey commercial streetscape, without being imitative.

(e) The proposal is inconsistent with the management policy for the heritage significance of King Street, which is identified in Part 8.2.4.3 of the MDCP as follows:

Development must respect the low scale and modest Victorian period character of the area.

The original form, scale and detail of heritage items and contributory buildings must be retained and enhanced, where possible. Vertical additions to those buildings should generally not be visible from King Street or Enmore Road, unless in accordance with this DCP.

Alterations and additions to existing buildings must be carefully controlled to retain the intactness and consistency of the streetscapes.

Additions should generally be at the rear and have regard to their potential impact on the character of the rear lanes. Additions must not result in major changes to the scale, form or bulk of existing buildings, unless this does not affect the streetscape, including rear lanes.

(f) The proposal is inconsistent with the following design guidelines for rows of shops as identified in Part 5.4.2.3 of the MDCP as follows:

2. Retain the prevailing street wall height, distinctive parapet patterns or ridge lines against the sky;

12. Ensure alterations and additions do not compromise the consistency and integrity of a row of buildings;

14. Retain the horizontal and vertical pattern created by parapet lines, cornices, string courses, awnings, lot boundaries, pilasters, rainwater heads and downpipes that establish facade bays;

16. Where development will result in the long term exposure of a side boundary wall from surrounding streets, give design consideration to how this element presents to the streetscape. Avoid cheap or temporary materials and finishes. Where appropriate the introduction of texture, surface pattern, stepped building planes or light wells can also alleviate the visual impact of a blank side wall.

Unacceptable Amenity and Safety for Development

4. The Amended Application should be refused as the proposed works will reduce to an unacceptable degree, the level of amenity and safety for residents within the existing development.

Particulars

(a) The proposed development will reduce the level of solar access to the development due to the increased height of the eastern portion of the building. This will reduce light entering the southern light well, and thereby adversely impact light to the dwellings and lobbies below.

(b) The proposed development will impact the natural ventilation of lower units due to the increase in height of the light well.

(c) The proposed development will reduce the level of solar access to the balcony and potentially the skylights of Unit 4 within the development.

(d) The proposed development will reduce the level of privacy to the balcony of Unit 4 within the development.

(e) The proposed development removes entirely the existing 62.95sqm of communal open space on the roof. Under Part 3D - Communal and Public Open Space - of the Apartment Design Guide (ADG), 25% of the site (57.4sqm) is to be provided as communal open space. Further, the proposal removes all existing communal open space whilst increasing the number of occupants on the site.

(i) Although sprinkler and drencher systems are installed in the premises:

i. There is no guarantee they will be operational at the time a fire may occur or whether there is sufficient water pressure or volume to extinguish a fire, and

ii. A revised Fire Engineering Report has not been provided to demonstrate whether the current sprinkler and drencher systems are sufficient (or whether they need to be augmented).

Inadequate Information

6.   There is inadequate information to allow for the assessment of the Amended Application.

Particulars

Survey

(a) No survey plan has been provided, which sets out the details of the height and location of the existing building on the site, particularly in relation to side boundaries. The RL information on the plans appears to rely upon the proposed levels in the development consent.

(b) The survey plan dated 28 February 2024 and prepared by S.J Surveying Services Pty Ltd is a Level Survey only, providing limited information. The survey plan includes notes advising, for example, that no boundaries have been surveyed, structures have not been accurately located in relation to the boundaries, adjoining properties and window locations are approximate only, etc.

Inadequacy of Plans

(d) There is inadequate information on the plans to allow assessment of the Amended Application, in particular:

i. In relation to the depiction of existing development, the Roof Plan DA205 Revision D, dated 7 December 2023 does not appear to be consistent with existing development on the site, with reference to an aerial photograph of the site. The inconsistencies relate to the three central void dimensions/locations, the skylights above Units 4 and 5, the roof configuration/ridge location above Unit 5 and part of the lobby, and existing centrally located roof plant. The apparent inconsistencies may also affect elevations and sections.

...

ii. There is inadequate survey based RL information to allow an assessment of height.

iii. There are inadequate dimensions to determine the setback of the proposed elements from King Street.

iv. The plans fail to show the relationship of the sections to the existing adjoining properties.

v. There is no detail for the methodology used in the preparation of the street views and no street views are provided from further than 30m along King Street or more than 15m along Bray Street. The reference diagram is not to scale. Given the lack of information, the accuracy of the street views cannot be corroborated.

Shadow Diagrams

(e) The shadow diagrams provided are inadequate to determine the additional impact of the proposed works on the solar access of Unit 4.

(f) View from the sun diagrams on an hourly basis between 9am and 3pm at midwinter are required to allow assessment of solar access to the development as a whole and Unit 4 in particular.

...

Fire Safety

(h) There is inadequate information to show an appropriate performance based solution for the existing building in relation to fire safety and egress, that would ensure the fire safety or the health of the occupants of the building would not be adversely impacted.”

42. Acknowledging the Respondent’s detailed contentions and related particulars still pressed, I note that at its essence, this matter can be usefully reduced to two related questions:

1. Whether the final amended DA - proposing alterations and additions to a contributory item situated within a HCA - has an unacceptable impact upon the streetscape character and heritage values of the HCA (Contention 3).

2. Whether the final amended DA - by virtue of its proposed building form and general arrangement - results in an unacceptable diminution of amenity available to existing residents, primarily in terms of impaired solar access, natural ventilation, acoustic and visual privacy, and the deficit of communal open space (Contention 4).

43. If these two threshold issues were determined to be acceptable, and if the Applicant’s written request seeking to vary the FSR development standard pursuant to cl 4.6 of the IWLEP were upheld (Contention 2), then the parties and their experts agree that the final amended DA is in a form, and supported by suitable documentation, as to allow the lawful grant of consent, subject to agreed conditions of consent.

The evidence

The expert heritage evidence

44. The Court was assisted by experts in heritage who conferred to prepare a joint report. The experts are Mr Patrick Wilson for the Applicant and Ms Lisa Trueman for the Respondent. Their joint expert report forms Exhibit 3 in these proceedings.

45. At the date of their joint conferencing, Mr Wilson and Ms Trueman were considering the DA as amended and for which the Court had granted leave to on 22 May 2024 (Exhibit B).

46. At section 5 of the joint report, Mr Wilson and Ms Trueman set out their agreed position on a series of design amendments that “should be made to reduce the heritage impacts and improve the presentation of the King Street elevation” as follows (noting an apparent paragraph numbering discrepancy):

“…

4.1   Window W02 (front elevation of the proposed studio) should be reconfigured as a pair of vertically proportioned openings.

4.2   The height of the proposed studio’s roof should be lowered to ensure that its visibility from the street is further minimised. The roof should pitch off 2.7m at the eastern wall, with the form of the roof changed to be a simple skillion, sloping towards King Street, with a pitch of 1 degree. This will further reduce the overall height and visibility of the addition.

4.3   The proposed frameless glazing for the new balcony balustrade should be clear glass in lieu of obscure glazing, and the existing opaque glazed screen to the northern boundary should be replaced with frameless glass at the approved location and height.

4.4   Given that the space behind the primary parapet will be non-trafficable, the opportunity to delete the existing non-original parapet/screen that is set directly behind the historic parapet should be taken. The removal of this visually intrusive element will re-emphasise the original pedimented parapet, particularly 'in the round' from oblique sightlines.

4.5   The experts agree that some conservation actions to reinstate the historical integrity of the King Street facade would improve the heritage outcome of the proposal. The following conservation works are recommended for consideration:

(a)   Correct the date in the pediment from “c.1867” to “c.1887” (accepting the date range for construction as 1885-87).

(b)   Replace the first-floor double-leafed metal doors in the facade with more traditional French timber doors. Provide timber-framed awnings/hoods with a restrained timber bracket above the front first-floor doors to the King Street facade to better articulate this elevation in the manner of its mid-20th century state (post-removal of the double-height verandah) – based on the photograph below. Alternatively, the previously approved option to reinstate a first-floor verandah could be pursued.

(c)   Remove the current unsympathetic shopfront and replace it with the previously approved shopfront.”

47. In her oral evidence, Ms Trueman was taken to the architectural plans depicting the latest amended DA (at this point Exhibit C), where she agreed that each of the items noted in par 5 of the joint report had been incorporated into the plans to the following extent:

1. Two vertically proportioned windows are shown proposed in the King Street elevation of new Unit 6, which are satisfactory.

2. The proposed roof to new Unit 6 is shown pitching from the top of the existing free standing eastern wall and falling towards King Street in a simple skillion form at a pitch of three degrees, which is satisfactory.

3. The proposed balustrade glazing to private open space provided to Unit 6 is noted on the plans as “frameless clear glass”, which is satisfactory.

4. The non-original parapet set directly behind and above the original retained facade and parapet is not depicted consistently in various versions of the plans, sections and elevations contributing to some ambiguity. Ms Trueman gave her view that the non-original parapet may conceal a structural element, or may be partly lightweight, and that it appears to support skylights that serve Unit 4 below. In any event, Ms Trueman noted that the extent of the non-original parapet protruding above the original parapet and visible from King Street remains “problematic”. Ms Trueman restated her view that the heritage presentation of the original facade and parapet would be improved if the non-original parapet were removed.

5. The plans depict a date of “c.1887” on the original parapet, which is satisfactory.

6. The plans do not yet depict the substitution of timber French doors for the existing steel framed French doors, however Ms Trueman accepted that this could be resolved by way of an agreed condition of consent and prior to issue of construction certificate.

7. Similarly, the plans do not yet depict the removal of the existing shop front and adjacent doors, however Ms Trueman accepted that this could be resolved by way of an agreed condition of consent and prior to issue of construction certificate, and further noted that the original development consent appended to the joint report was the appropriate description of an acceptable design intent for the shopfront.

48. In his oral evidence, Mr Wilson accepted that there is some ambiguity in the architectural plans regarding the location and extent of the non-original parapet, but notwithstanding this, that the portion visible from vantage points along King Street is “intrusive” and the “heritage presentation would improve if the parapet were removed”.

49. More generally in the joint report, Mr Wilson sets out at pars 6.1, 6.3 and 6.4 his view that:

“The studio proposal would not directly interface with and/or conceal or obscure any fabric of core or contributory significance to the King Street and Enmore Road HCA (C73) or the adjacent heritage item (Botany View Hotel) when viewed from the public realm (effectively, King, Darley, and Bray streets)

…the visibility of the proposal from close views (immediate vicinity) on King Street, where available, would be highly circumscribed. From medium or long-distance vantage points, the addition's presence would only be minimal. Such incidental public realm visibility would ensure it would not dominate the subject building or its neighbours' historic facades or the broader 'blue sky' backdrop to the historic/contributory commercial street wall. The significance of HCA C73 would not be diluted by the addition of a setback and architecturally low-key roof studio.

The proposal, in its current form, would not have an intolerable impact on King Street's recognised heritage value. However, further improvements in compatibility and a reduction in overall height, as set out in paragraphs 4.1 and 4.2, would further mitigate potential heritage impact, although I remain of the view that the scheme in its current form can be acceptable on heritage grounds.”

50. In further oral evidence, Mr Wilson elaborated on the fact that although the proposed building form will be visible “particularly from Bray Street” and brings with it some degree of negative impact, it is not unacceptable given the broader character of King Street and the observable pattern of infill development and rooftop additions elsewhere in the immediate vicinity.

51. In contrast, Ms Trueman at pars 5.9, 5.10 and 5.11 says (again noting an apparent paragraph numbering discrepancy within the joint report):

“The existing addition to the top of the 1880s shop building is already visible from the street and displays a form, materials, details and character that are unsympathetic to the conservation area. Any further extension of the upper level towards King Street will increase that visibility and the overall impacts of the highly unsympathetic development as viewed from Bray Street and King Street to the south.

It is my opinion that the current addition already has an adverse impact on the contributory item and conservation area and has maximised the amount of development that can occur on the site without impact on the conservation area. Any extension forward of the existing upper level will be significantly more visible in views from Bray Street and from the south, across the heritage listed Botany View hotel.

I note that the solid walls immediately behind and above the original parapet of the front façade were not approved as part of the consent for the development. Although these walls assist in screening the current development in views from Bray Street, they are highly intrusive elements that have distorted the scale, proportions and detail of the King Street façade (see photograph at paragraph 4). These elements should be removed to reinstate the scale of the façade and silhouette of the original parapet and pediment. The removal of these elements will increase the visibility of the proposed addition, however the reinstatement of the parapet in its original and approved form is essential to reverse works that have had an unacceptable level of heritage impact.”

The expert planning evidence

52. The Court was assisted by experts in planning who conferred to prepare a joint report. The experts are Mr Gerard Turrisi for the Applicant and Mr George Youhanna for the Respondent. Their joint expert report forms Exhibit 4 in these proceedings.

53. At the date of their joint conferencing, Mr Turrisi and Mr Youhanna were considering the DA as amended and for which the Court had granted leave on 22 May 2024 (Exhibit B).

54. At par 2.1 of the joint report, the experts set out the extent of their agreement, summarising the key changes introduced into the plans at the date of joint conferencing:

“The scheme as originally submitted was for an additional one-bedroom apartment. The amended scheme is now for a studio apartment and as a result, the FSR has been reduced and the height of the development [made] compliant with the height control contained [in] the IWLEP…”

55. Mr Turrisi then goes on at par 2.2 to set out the premise for the construction of the Applicant’s cl 4.6 written request, seeking to vary the development standard for FSR:

“An amended cl 4.6 variation has been submitted with the amended scheme...The cl 4.6 offers as part of this amended application…the use of the additional floor space as affordable housing. The offer in my view does not need to be assessed under the [State Environmental Planning Policy (Housing) 2021] Housing SEPP as the variation forms part of the environmental planning ground that seeks a variation to the floor space control under the IWLEP. As discussed during joint conferencing, the unit can be set aside for affordable housing via title to ensure it is preserved for that purpose. I have suggested 10 years, being consistent with the previous [State Environmental Planning Policy (Affordable Rental Housing) 2009] AHSEPP.”

56. In his oral evidence and generally addressing Contention 6, Mr Youhanna identified a number of areas within the final amended architectural plans (Exhibit G) which, in his view, remain ambiguous or do not serve to accurately depict the existing building.

57. These discrepancies extend to the size of the internal atria and the degree of their enclosure to the sky, the location and profile of the non-original parapet beam engaged behind the original facade to King Street, the presence of an original chimney close to the southern boundary, the location and number of existing skylights associated with Unit 4 and the relationship between existing and proposed floor levels at the third level.

56. Mr Youhanna has set out other inconsistencies evident within earlier revisions of the plans in the joint report at pars 6.6-6.9.

57. Next, generally addressing Contention 4 and the diminution of amenity available to existing dwellings on the site, Mr Turrisi noted in his oral evidence that the final amended DA is configured in a manner that does not diminish the solar access, privacy, natural light or natural ventilation currently available to the existing residential apartments.

58. At pars 4.1-4.4 of the joint report, Mr Turrisi sets these points out in further detail as follows:

“View [from] the sun diagrams have been provided as part of the application and those diagrams clearly show that with the setbacks proposed by the new addition [the DA] will not cast any additional overshadowing onto the southern light well. The western wall, being the wall that forms part of the entry into the new dwelling already exists

…the amended scheme has reduced the height so there is no increase in height that would impact natural ventilation as there is no roof over the void/light well. The amended scheme provides no cap to the central void, so the [natural ventilation] status quo is retained.

…the proposal does not cast any additional shadows over the skylights or to the balcony of Unit 4 below.

…sun view diagrams clearly show that the living space and balcony of the new dwelling receives more than complying solar access.

The positioning of the non-trafficable area around the studio [apartment] and the use of frosted glass to the living room window ensures that there is no privacy impact to the unit below.”

61. In contrast, Mr Youhanna sets out his position at pars 4.13-4.15 of the joint report, where he says:

“…when assessed against the approved development, the proposed apartment will result in a reduction in solar access, natural light and ventilation to the light well as a result of the increase in the height of the light well, and will consequently reduce amenity for the existing dwellings in the building.

I note that the existing eastern wall at roof level is not consistent with the approved plans under DA2016/0565 and I am unaware of any prior modification applications under s.4.55 of the EPA Act 1979 to modify the approved development.

The proposed apartment will reduce aural privacy to Unit 4 due to the close proximity of the living room window, dining room sliding door and the balcony. The [proposed] apartment and private open space will be occupied permanently by residents and will therefore have a higher intensity of use when compared to communal open space.”

62. Under cross examination, Mr Youhanna also offered his view that the bedroom windows addressing the central atrium would be better treated with clear glass and adjacent privacy screens than the obscure glass currently proposed.

63. Turning to the contention regarding the deficit of communal open space, in his oral evidence Mr Youhanna noted that the final amended DA situates a new studio apartment in the location currently configured as approximately 60sqm of communal open space. If approved, the final amended DA would result in the removal of all communal open space currently available to residents.

64. Mr Youhanna went on to note that the existing communal open space receives very good solar access year round, offers district views and is not particularly noise affected.

65. Further, Mr Youhanna is concerned that the existing dwellings at Units 1-5, do not currently receive good solar access, and that the elimination of the existing communal open space will diminish the amenity available to all dwellings.

66. These points are elaborated by Mr Youhanna at pars 2.14-2.23 of the joint report.

67. In response, Mr Turrisi noted that the Apartment Design Guide (ADG) acknowledges (at Part 3D) that the provision of communal open space can be situated off-site and pointed out the close proximity of Sydney Park.

68. Further, Mr Turrisi noted that the allocation of private open space within the existing building offers larger-than-minimum balcony sizes to compensate for the loss of communal open space.

69. He noted also that the final amended DA would improve the overall performance of the existing building from three of five existing apartments, receiving a minimum of two hours of solar access (60%), to four of six apartments (66%).

70. These points are elaborated at pars 4.5-4.9 of the joint report as follows:

“We note that the amended proposal does remove the communal open space (COS) on the top level. The original scheme noted the existing outdoor space on the ground floor but the amended scheme does not rely on this area as part of the justification to remove the COS.

The ADG provisions [at 3D-1] acknowledges that a variation to the COS is possible if the site is within a business zone, on a small site or in a dense urban area. The subject site is within proximity to public open space and the land is both zoned for business purposes and is a small lot.

The subject site is within 200m of Sydney Park, which is south of the site. The park provides both passive and active recreational spaces...

In addition, it is noted that 3 of the 5 balconies to the existing units are significantly larger than the minimum requirement, including that of the new dwelling...

“Objective (3D-1) of the ADG provisions seeks to have an adequate area of communal open provided to enhance residential amenity. The objective does not specifically stipulate that its needs to be on the site. Hence the Design Guidance within the ADG provisions permits a variation and with the proximity of Sydney Park to the site and the fact that 4 of the 6 units have balconies of a significant size greater than the minimum requirement, means the objective is met.”

71. In further oral evidence, Mr Youhanna noted that the proposed additional floor space is what displaces the existing communal open space, that the displacement of communal open space diminishes the amenity available to existing dwellings, and that the offer to provide the proposed apartment as affordable housing “doesn’t cure this impact.”

72. Under cross examination, Mr Turrisi was taken to the final dot point of guidance set out in Part 3D-1 of the ADG, which says “Where developments are unable to achieve the design criteria…”. Mr Turrisi accepted that the site could (and currently does) provide communal open space consistent with the ADG criteria.

73. Mr Turrisi then stated his view that although the overall level of amenity available to the existing dwellings does diminish, this is not to an unreasonable extent, and that the loss of communal open space is able to be justified in its own right, separate from any proposal for additional floor space.

74. The planning experts each also addressed the streetscape impacts created by the final amended DA. At pars 3.8-3.9 of the joint report, Mr Youhanna says:

“With regard to desired future character, I maintain that the proposed studio apartment will be visible from the opposite side of King Street and over the Botany View Hotel, with an adverse impact on the desired future character of the locality.

I acknowledge that there are examples of roof level additions on sites to the south of the subject site that are visible from King Street, however, these examples are inconsistent with the prevailing desired future character and have an adverse impact on the streetscape. They should not be used as justification for the proposed development in relation to inconsistency with the desired future character.”

75. Conversely, Mr Turrisi, at pars 2.5 and 2.7, says:

“...The amended scheme has reduced the proposed built form as visible along King Street. A comprehensive assessment has been made and a series of Street View images provided. Some of the images have been provided…which illustrates that only a very small portion of the upper level can be seen on the alternative side of King Street (eastern side).”

“…the extent of the form that is visible from the street is very minor at best and is very recessive in its form. I am therefore not of the opinion that the additional floor space would have a detrimental impact on the conservation area nor the streetscape as it’s an element that already exists in the street from a built form perspective, evident in the above photographs. The approved and constructed built form remains as the dominant facade to the street and the upper level does not conflict or dominate the King Street presentation.”

76. Further, at pars 3.4-3.5 of the joint report, Mr Turrisi elaborates on this view:

“The proposal in my view does not create an unacceptable impact to the streetscape within the area. The proposed fabric is consistent with the existing building as approved and therefore will be a sympathetic addition to the existing building.

The proposed addition will not generally be visible from the street and in my view, will be consistent with the desired future character of the area notwithstanding that a variation to the floor space control is being proposed. The addition has been amended so it has a greater setback from the top parapet of the existing building so that it is not generally read from the street. The addition is of a low scale and modest. Desired future character is also informed by existing development. Thus, the existing character, in terms of built form, is a consideration.”

Findings

77. I now move to uphold the appeal. In deciding this course, I set out my reasons over the following paragraphs.

78. Firstly, it is useful to restate that this dispute rests primarily on two related questions:

1. Whether the final amended DA - proposing alterations and additions to a contributory item situated within a HCA - has an unacceptable impact upon the streetscape character and heritage values of the HCA (Contention 3).

2. Whether the final amended DA - by virtue of its proposed building form and general arrangement - results in an unacceptable diminution of amenity available to existing residents, primarily in terms of impaired solar access, natural ventilation, acoustic and visual privacy, and the deficit of communal open space (Contention 4).

79. These two tests are central to my findings in this matter and ultimately represent the determinative factors.

80. As noted earlier in this judgment, once these two threshold issues are determined to be acceptable, and if the Applicant’s written request seeking to vary the FSR development standard is upheld (Contention 2), then the parties and their experts agree that the final amended DA is in a form, and supported by suitable documentation, as to allow the lawful grant of consent, subject to agreed conditions of consent.

81. At the outset, it is of particular note that the DA has been amended several times since its refusal on 18 April 2023, and in a number of key aspects:

1. The proposed fourth floor communal open space and associated lift and stair access has been removed from the DA, rendering the final amended DA consistent with the relevant height of building development standard.

2. The scale and form of the proposed Unit 6 has incrementally reduced in plan and section over several iterations of the plans.

3. The final amended DA seeks consent for the “future use” of an existing wall that has been unlawfully constructed during the implementation of DA/2016/565.

4. The proposed Unit 6 is now offered as affordable housing for a period of ten years, although the Respondent’s conditions of consent (Exhibit H) note at Condition 24 that the period will be fifteen years, which was not opposed by the Applicant.

Streetscape and HCA impacts - Contention 3

82. In the particular circumstance of this matter, I firstly find that the final amended DA meets the merit test for an acceptable heritage impact established by cl 5.10(4) of the IWLEP, and that the heritage values of the King Street and Enmore Road HCA are - on balance - improved.

83. This improvement in heritage values arises for two reasons. Firstly by virtue of the final amended DA incorporating amendments to reduce the scale and visibility of the proposed new Unit 6, it’s boundary walls, balustrading and leading eave line.

84. I am satisfied that the degree to which the final amended DA remains visible from public vantage points along King Street has reduced to the point of acceptability.

85. In this regard, I generally accept the evidence of Mr Wilson where he states at pars 6.1-6.3 of the heritage joint report (Exhibit 3):

“The studio proposal would not directly interface with and/or conceal or obscure any fabric of core or contributory significance to the King Street and Enmore Road HCA (C73) or the adjacent heritage item (Botany View Hotel) when viewed from the public realm (effectively, King, Darley, and Bray streets).

…an acceptable outcome is also one in which development does not subtract from the identified heritage significance of the HCA or other heritage assets. The [proposed] addition satisfies the latter by not being overly visible from King Street nor presenting as an incongruent or disruptive skyline feature...

…the visibility of the proposal from close views (immediate vicinity) on King Street, where available, would be highly circumscribed. From medium or long-distance vantage points, the addition's presence would only be minimal. Such incidental public realm visibility would ensure it would not dominate the subject building or its neighbours' historic facades or the broader 'blue sky' backdrop to the historic/contributory commercial street wall. The significance of HCA C73 would not be diluted by the addition of a setback and architecturally low-key roof studio.”

86. Secondly - and directly related to improving the heritage and streetscape values evident within the HCA - is the imposition of a condition of consent that requires the intrusive, non-original parapet to be reconstructed in a form that is concealed entirely behind the original King Street facade.

87. This condition of consent (Exhibit H) states:

“1A. Heritage Amendments to approved plans

a.   The part of the non-original parapet that extends higher than the historic parapet is to be removed. An alternate solution to the structural support of the historic parapet, which does not involve an extension higher than the historic parapet, is to be implemented. The skylights directly behind the historic parapet are to be modified or replaced so that they extend no higher than the historic parapet.”

88. In imposing this condition of consent, I am persuaded by the evidence of both Ms Trueman and Mr Wilson, who each described the existence of the non-original parapet as “intrusive”.

89. I also impose this condition mindful of Dr Smith’s submissions “…that the limited improvement achieved by removing the heritage parapet support wall is not warranted in light of the approved structural engineering plans…”.

90. Rather, I find that the rectification of this non-original parapet will serve to markedly improve the legibility and coherence of the original facade within the King Street streetscape, and is the most critical contributor to the overall acceptability of the final amended DA.

Unacceptable amenity - Contention 4

91. This contention is structured around a series of issues related to the level of residential amenity afforded to existing and proposed dwellings situated at the subject site, and particularly whether the final amended DA results in an unacceptable diminution of amenity, primarily in terms of impaired solar access, natural ventilation, acoustic and visual privacy, and the deficit of communal open space.

92. Before dealing with each of these aspects in turn, it is appropriate to elaborate on the fact there remains controversy regarding discrepancies evident between:

1. The architectural plans accompanying the original DA consent (DA/2016/565).

2. The ensuing Construction Certificate plans and particularly the structural engineering drawings (Exhibit 5).

3. The architectural plans accompanying the Class 1 Application in this matter (Exhibit A).

4. The amended DA for which the Court granted leave on 22 May 2024 (Exhibit B).

5. The further amended DA for which the Court granted leave on 24 June 2024 (Exhibit C).

6. The final amended DA (Exhibit G).

7. Certain observed built features of the existing building during the site view prior to the commencement of the hearing on 24 June 2024.

93. Some of the discrepancies relate to observable built features that are not consistently depicted in various versions of the architectural plans, such as:

1. The non-original parapet protruding above the original King Street facade and parapet, which appears in elevation but not in plan or section.

2. The dimension and degree of enclosure evident in the three central atria, which differ from the approved plans accompanying DA/2016/565 and their depiction in the subject DA.

3. The presence of an existing wall that appears not to have been constructed lawfully and which currently describes the eastern elevation of the third floor and would form the rear wall of the proposed studio apartment Unit 6.

4. A portion of roof immediately adjacent to the proposed location of the new studio apartment Unit 6.

94. Other such discrepancies may also persist in the existing built works, and accordingly the parties have agreed to the imposition of a condition of deferred commencement as follows:

“A. As-built survey of building and Building Information Certificate

The person acting on this consent shall provide to Inner West Council a comprehensive survey of the existing building and all works on the site, including accurate architectural plans, elevations and sections (based on a current boundary and level survey of the building in relation to the property boundaries and existing levels), and shall provide a schedule of all discrepancies between the Development Consent under DA2016/0565, Construction Certificate No.18/169 and the development as constructed.

Evidence required to satisfy these requirements must be submitted to Inner West Council (through the NSW Planning Portal) within two (2) years of the date of this consent, or the consent will lapse in accordance with the Environmental Planning and Assessment Regulation 2021. Applicants must submit a request for operational consent to Inner West Council via the NSW Planning Portal and upload all relevant documentation.”

95. For the purposes of resolving this dispute, I am satisfied that despite these various discrepancies between the DA documentation and the observable built works, the depiction of proposed development for which consent is sought is sufficiently certain to allow for its proper assessment and determination.

96. Returning then to the first leg of Contention 4 - solar access - I am satisfied that the final amended DA creates no unreasonable additional overshadowing impacts either within the site or beyond.

97. This is primarily because the existing wall at the third floor (albeit unlawfully constructed) is the feature that establishes the existing overshadowing impacts on the central atria, and the final amended DA does not amplify these impacts in any material way.

98. I accept the submissions of Dr Smith that the assessment of impacts created by the final amended DA must be made in the context of the existing building as built, and not an imagined version of the central atria where the unlawfully constructed existing wall (for which a lawful future use is now sought) does not exist.

99. Turning to the second leg of Contention 4 - natural ventilation - I again accept that the final amended DA will have no material impact on the degree of natural ventilation available to existing apartments presenting window openings to the central atria.

100. For similar reasons as those relating to solar access, the final amended DA does not contribute to any additional enclosure of the central atria and hence current levels of natural ventilation will be maintained.

101. Turning to the third leg of Contention 4 - acoustic and visual privacy - I am satisfied the final amended DA does not cause any unreasonable additional acoustic or visual privacy impacts to existing or proposed apartments.

95. Mr Youhanna sets out his concern at par 4.15 of the planning joint report, that the final amended DA will create acoustic privacy impacts upon Unit 4 given the proposed location of private open space associated with Unit 6.

96. In oral evidence, Mr Turrisi observed that this concern would be mitigated by the reduced level of occupation of private open space associated with a single studio apartment (Unit 6) when compared with this area’s current use as communal open space available to all residents of the building.

97. On balance, I accept that the relatively modest level of occupation associated with a single studio apartment will not bring an unreasonable impact to the acoustic privacy of Unit 4.

98. Similarly, I accept that other acoustic and visual privacy impacts created by the final amended DA are relatively minor and not inconsistent with a development comprising six residential units.

99. However, in making this finding, and broadly consistent with oral evidence provided by Mr Youhanna, I also accept that the existing bedroom windows at the first and second floors, opening to the central atrium would receive greater visual privacy if provided with projecting privacy screens and clear glazing (rather than no screen and obscure glass as proposed).

100. Accordingly, Condition of Consent 1B (Exhibit H) shall be amended as follows:

1B. Obscure Glazing

The proposed obscure glazing to the bedroom windows of Units 2 and 4 is not approved, and in lieu of obscure glass, full height projecting privacy screens of 600mm in depth shall be installed to these windows with clear glazing to provide both visual privacy and outlook.

108. Finally, turning to the fourth leg of contention 4 - the deficit of communal open space - I accept that the final amended DA results in a diminution of amenity available to residents of the building, however, in isolation I find this is not sufficient grounds to warrant refusal.

109. In closing, Mr Robertson submitted that the final amended DA results in a degree of reduced amenity available to the existing and proposed apartments, and that the elimination of all communal open space from the building comes in concert with an intensification of the residential use.

110. Although this is a matter deserving scrutiny, I accept the Applicant’s broad premise that the proximity of Sydney Park is able to compensate for the lack of communal open space provided within the site.

111. In the planning joint report, at pars 4.6-4.9, Mr Turrisi elaborates on this premise and notes in particular that the ADG (at Part 3D-1) does countenance scenarios where communal open space is not provided within a residential apartment development.

112. Further, Mr Turrisi noted in oral evidence that the existing communal open space is exposed to the elements, unshaded and does not provide any landscape elements or communal amenities. I accept these are attributes of the current communal open space which impair its amenity.

113. Mr Youhanna’s evidence in contrast makes persuasive points regarding the existing communal open space receiving good solar access year round, offering district views and not being particularly noise affected.

114. However, on balance, I am satisfied that despite diminishing - to some extent - the residential amenity currently provided on site, the final amended DA demonstrates sufficient merits and performs adequately overall to warrant the grant of consent.

Upholding the Applicant's cl 4.6 written request - Contention 2

115. Having formed a view that the final amended DA may be granted consent, I turn to the key jurisdictional tests, commencing with the proposed exceedance of the FSR development standard as set out at cl 4.4 of the IWLEP.

116. In such an instance, cl 4.6(3) of the IWLEP requires consideration of a written request from the Applicant demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

117. Clause 4.6(4) of the IWLEP (at the relevant date) requires the consent authority to be satisfied that the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

118. Additionally, cl 4.6(4)(b) of the IWLEP (at the relevant date) requires the concurrence of the Planning Secretary be obtained, and cl 4.6(5) (at the relevant date) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 20-002 issued on 5 May 2020), the Court may assume the concurrence of the Planning Secretary in this matter.

119. As required by cl 4.6 of the IWLEP, the Applicant has provided a written request, prepared by GAT and Associates, dated 21 June 2024 (forming part of Exhibit C), seeking to vary the FSR development standard set out at cl 4.4 of the IWLEP.

120. The final amended DA proposes a total Gross Floor Area (GFA) of 466.38sqm, of which the proposed new studio apartment represents an additional 41 sqm. The final amended DA results in a total FSR of 2.03:1. The applicable FSR development standard is 1.5:1.

121. The existing building has an FSR of 1.85:1, already lawfully exceeding the development standard by 23.8%.

122. The final amended DA now represents a cumulative breach of the FSR standard of 122.13sqm or 35.5%.

123. I am satisfied, that the Applicant’s written request adequately justifies the proposed variance to the FSR development standard for the following reasons:

1. The final amended DA achieves the objectives of the FSR development standard notwithstanding the exceedance.

2. The site comprises an existing four-storey shop top housing development, sited behind an original retained facade in a form which currently exceeds the FSR development standard.

3. The final amended DA proposes to increase this exceedance by a relatively minor extent (41 sqm) in a manner which will also result in an improved presentation of the original facade to King Street through the removal of an existing non-original and intrusive parapet wall (Condition of Consent 1A within Exhibit H).

4. The final amended DA introduces new building form of a scale that will be recessive and unobtrusive when viewed from vantage points along King Street. The proposed new studio apartment is low set and set well back from the original facade in a manner that is consistent with the observable values of the HCA.

5. The FSR exceedance brings with it no material impacts of overshadowing, natural ventilation, cross viewing or acoustic privacy.

6. The final amended DA provides for the new studio apartment Unit 6 to be used for affordable housing for a period of fifteen years, managed by a registered Community Housing Provider, and given effect by a restriction on title (Condition of Consent 24 within Exhibit H).

7. I am satisfied the final amended DA is consistent with the objectives of the IWLEP Zone E1 Local Centre land use zone, which are:

•   To provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area.

•   To encourage investment in local commercial development that generates employment opportunities and economic growth.

•   To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council’s strategic planning for residential development in the area.

•   To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

•   To provide employment opportunities and services in locations accessible by active transport.

•   To provide retail facilities and business services for the local community commensurate with the centre’s role in the local centres hierarchy.

•   To ensure Inner West local centres are the primary location for commercial and retail activities.

•   To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

•   To enhance the unique sense of place offered by Inner West local centres by ensuring buildings display architectural and urban design quality and contributes to the desired character and cultural heritage of the locality.

8. I am satisfied the final amended DA is consistent with the objectives of cl 4.4 of the IWLEP, which are:

(a) to establish a maximum FSR to enable appropriate development density,

(b) to ensure development density reflects its locality,

(c) to provide an appropriate transition between development of different densities,

(d) to minimise adverse impacts on local amenity,

(e) to increase the tree canopy and to protect the use and enjoyment of private properties and the public domain.

124. Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to the FSR development standard, and I find to uphold the written request.

125. Further jurisdictional prerequisites to the grant of consent in this matter include the following items:

1. The Applicant has provided a BASIX Certificate number: 1752505M dated 21 June 2024 in satisfaction of the requirements of SEPP BASIX and s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

2. The Applicant has provided a Design Verification Statement prepared by Liljana Ermilova (NSW Registered Architect 7887) in satisfaction of the requirements of SEPP 65 and s 29 of the EPA Reg.

3. The DA was made with the consent of the owner of the land, evidenced within the Class 1 Application (Exhibit A) accompanying this matter.

Disposing of the matter

126. In moving to now dispose of the appeal, I note this decision involves the Court exercising the function under s 4.16(1)(a) of the EPA Act to determine the DA by way of the grant of consent.

Orders

127. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA2022/0879 and rely upon the amended plans and documents referred to at Condition 1 of Annexure A.

2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application, as agreed or assessed.

3. The appeal is upheld.

4. Consent is granted to Development Application DA2022/0879 (as amended) for alterations and additions to an existing shop top housing development at 595 King Street, Newtown, subject to the conditions of consent at Annexure A.

5. The exhibits, other than 1, 3, 4, A, G and H, are returned.

M Pullinger

Acting Commissioner of the Court

140210.23 Annexure A (307154, pdf)

140210.23 Architectural plans (2258844, pdf)

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Amendments

07 August 2024 - Underlining removed at par [94].

07 August 2024 - Links to Annexure A and Architectural Plans amended.

Decision last updated: 07 August 2024