The Owners - Strata Plan No 17037 v Randwick City Council

Case •

[2013] NSWLEC 1251

•

20 December 2013

Land and Environment Court


New South Wales

Medium Neutral Citation: The Owners - Strata Plan No 17037 v Randwick City Council [2013] NSWLEC 1251
Hearing dates:10-11 December 2013
Decision date: 20 December 2013
Jurisdiction:Class 1
Before: O'Neill C
Decision:

1. The appeal is dismissed.

2. Development Application No. 210/2013 for alterations and additions to a residential flat building is refused.

3. The exhibits, other than exhibits 1 and E, are returned.

Catchwords: DEVELOPMENT APPLICATION: alterations and additions to a residential flat building; impact on heritage significance of heritage conservation area; non-compliance with height and floor space ratio development standards.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Cases Cited: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101
Davies v Penrith City Council [2013] NSWLEC 1141
Category:Principal judgment
Parties: The Owners - Strata Plan No. 17037 (Applicant)
Randwick City Council (Respondent)
Representation: Mr Nick Eastman Barrister (Applicant)
Mr Adam Seton Solicitor (Respondent)
Gadens Lawyers (Applicant)
Marsdens Law Group (Respondent)
File Number(s):10755 of 2013

Judgment

  1. COMMISSIONER: This is an appeal pursuant to the provisions of s97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of Development Application No. 210/2013 for alterations and additions to an existing residential flat building (the proposal) by Randwick City Council (the Council), at 40 Marcel Avenue, Randwick (the site).

  1. The appeal was subject to mandatory conciliation on 10 December 2013, in accordance with the provisions of s34AA of the Land and Environment Court Act 1979. As agreement was not reached during the conciliation phase, the conciliation conference was terminated pursuant to s34AA(2)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s34AA(2)(b)(i).

Issues

  1. The Council's contentions in the matter can be summarised as:

  • The addition of a level to the existing two storey residential flat building will have a detrimental impact on the heritage significance of the Moira Crescent Heritage Conservation Area;
  • The proposal does not comply with the development standards for height and floor space ratio and as a consequence, the proposal is of a size, scale and character that is not compatible with the adjoining buildings, the immediate locality, nor the desired future character of the area.

  1. The parties agreed during the conciliation conference to the addition of two conditions of consent (exhibit J), which describe amendments to the proposal, as follows:

  • the rear setback area is to made available for communal landscaping, with two unfenced car parking spaces paved in permeable materials; and
  • the proposed balconies to Units 5 and 6 are to be amended to achieve a minimum area of 8 sq m, with a privacy screen between apartments.

  1. The contentions relating to landscaping, private and communal open space, car parking and tree removal were resolved by this agreement.

The location and description of the existing residential flat building

  1. The site is located on the northern side of Marcel Avenue and the rear of the site backs onto Division Lane. The site contains a two storey residential flat building, with two apartments on the ground floor and two apartments on the first floor. The residential flat building on the site is relatively intact when viewed from Marcel Ave (exhibit 5, p 6).

  1. The buildings on the northern side of Division Lane are commercial buildings fronting Clovelly Road.

  1. The residential flat building on the site is currently uninhabited and the joinery skirtings, architraves and doors, as well as internal fittings including kitchens, bathroom fixtures and light fittings have been removed from all four apartments, by a previous owner. Most of the original internal masonry walls and decorative plaster ceilings are intact. The mortar joints of the brickwork on the western side elevation have eroded and left sections of brickwork structurally unstable and in need of repointing.

The proposal

  1. The proposal is to renovate the existing four apartments and to add a new third level to match the materials and detailing of the existing building externally, in order to replicate the existing first floor and roof design (exhibit 5, p 9, pt 4). The third level addition will house an additional two apartments.

  1. The proposal includes remodelling the entry stairs to the upper level apartments and demolishing the rear access stairs to the upper level apartments.

Planning Framework

  1. The proposal is subject to the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) at cl 4(1)(b).

  1. Subclause 30(2)(b) of SEPP 65 requires consideration to be given to the design quality of the residential flat development when evaluated in accordance with the design quality principles; and at subcl 30(2)(c) the publication Residential Flat Design Code (RFDC).

  1. The design quality principles of SEPP 65 are at cll 7-18. The design quality principles relevant to the proposal are principle 1: context, principle 2: scale, principle 3: built form and principle 4: density.

  1. The site is located within the R3 zone, pursuant to Randwick Local Environment Plan 2012 (RLEP 2012, exhibit 3, tab 12a). The relevant R3 zone objectives, in the Land Use Table of RLEP 2012 are:

· To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.
· To protect the amenity of residents.

  1. The development standard for height for the site is 9.5m (Height of Buildings Map RLEP 2012, exhibit 3, tab 12b). The relevant objectives of the height development standard, at cl 4.3 of RLEP 2012 are:

(a) to ensure that the size and scale of development is compatible with the desired future character of the locality,
(b) to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item,
(c) to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views.

  1. The development standard for floor space ratio (FSR) for the site is 0.75:1 (FSR Map RLEP 2012, exhibit 3, tab 12c). The relevant objectives of the FSR development standard, at cl 4.4 of RLEP 2012 are:

(a) to ensure that the size and scale of development is compatible with the desired future character of the locality,
(c) to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item,
(d) to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views.

  1. In order to provide an appropriate degree of flexibility in applying certain development standards to particular developments, exceptions to development standards are permitted, pursuant to cl 4.6 of RLEP 2012. Relevantly, subcl 4.6(3) and (4) state:

(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 Director-General has been obtained.

  1. The site is located within the Moira Crescent Heritage Conservation Area (Moira Cres HCA) (Heritage Map RLEP 2012, exhibit 3, tab 12). There are two heritage items located within the Moira Cres HCA and within the vicinity of the site, 23 and 31 Marcel Ave (exhibit 5, p 8). Both the heritage items are Inter-War residential flat buildings.

  1. The relevant objectives for heritage conservation, at cl 5.10 of RLEP 2012, are:

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

  1. The consent authority must, before granting consent 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, pursuant to subcl 5.10(4) of RLEP 2012.

  1. The relevant Development Control Plan for the proposal is Randwick Comprehensive Development Control Plan 2013 (RDCP 2013) (exhibit 3, tab 13).

  1. RDCP 2013 includes, at Section B2, objectives and controls for heritage, as well as statements of significance for HCAs. The objectives for heritage at cl 1.1 include:

to provide detailed guidelines for change to heritage items and properties within heritage conservation areas which will allow their heritage significance to be retained.

  1. Section 1.8.2, 'Development requiring consent', includes the following statement under 'Contributory buildings':

Contributory buildings provide good evidence of the main development period(s) and make a positive contribution to the character and/or heritage significance of heritage conservation areas. They have a collective significance and their retention is essential if the character of the area is to be maintained.

  1. Section 2 of RDCP 2013, 'Development Controls', includes the following for heritage items and HCAs, under 'Streetscape analysis':

Any proposal to alter or add to a heritage item or building in a heritage conservation area should start by assessing the heritage significance of the item and its various parts or the area, and also its relationship to neighbouring properties and the streetscape.
A new building, or additions which will be visible from the street, should fit into its streetscape context. The site analysis which is required for any DA must include a detailed streetscape analysis to identify consistent streetscape features.

  1. The controls for heritage items and contributory buildings, at section 2.1 of RDCP 2013, include the following:

(v) Street elevations and visible side elevations must not be significantly changed. Additions must be located to the rear or to one side of the building to minimise impact on the streetscape.
(vi) The design of any proposed additions or alterations must complement the existing building in its scale form and detailing. However, it should be possible to distinguish the new work from the old, on close inspection, so that old and new are not confused or the boundaries/junctions blurred.

  1. The objectives for scale and form, at section 2.3 of RDCP 2013, include the following:

To ensure that alterations and additions to heritage items and contributory buildings are consistent with the scale and form of these items or buildings, and do not dominate or compete with the existing significant heritage fabric.
To ensure that the scale and form of development is consistent with the predominant scale and form of the heritage conservation area and of adjacent heritage items or contributory buildings.

  1. The controls for scale and form, at section 2.3 of RDCP 2013, include the following:

(iv) Additions must not visually dominate, compete with or conceal the original form and massing of the existing buildings.

  1. Section 4 of RDCP 2013, 'Heritage Conservation Areas: Statement of Significance, Values and Guidelines', includes the following relevant statements:

Heritage conservation areas have distinctive historic and streetscape qualities that represent particular phases in the development of Randwick City. Components which contribute to this special character of heritage conservation areas should be retained and all new development should reflect and reinforce this character.
Existing character values to be retained for contributory buildings. New development including alterations and additions to existing buildings and infill development should generally respect these character values in order to be compatible with their surroundings. These hey values and characteristics need to be considered in addition to the general guidelines and controls contained in this DCP.

  1. The Moira Cres HCA, at section 4.8 includes the following description and assessment:

Randwick's best grouping of Inter-War residential flat buildings.
A hilltop heritage conservation area (partly within the suburb of Clovelly and partly with the suburb of Coogee) includes Moira Crescent as well as part of Marcel Avenue.
Significance
Aesthetic Significance:
The heritage conservation area has aesthetic significance because of the high integrity of its Inter-War streetscapes. Most buildings are constructed of red or liver coloured face brickwork, which is complemented by the red terracotta tile roofs. The most common building types are detached single storey Inter-War Bungalows and two or three storey flat building in Functionalist, Spanish Mission, Art Deco, Stripped or Free Classical or Bungalow inspired styles.
The area includes the best preserved and most consistent grouping of Inter-War flat buildings in the City of Randwick, which were so characteristic of the City's development in that period.
Most properties have dwarf piered face brick boundary fences which allow the gardens in front of the buildings to become part of the streetscape. The landscape quality of the streetscapes is also enhanced by the curved streets and wide nature strips. Some steeper sites have sandstone walling.
The precinct in Inter-War period housing has a close spatial connection to the small commercial centre on Clovelly Road. Most of the shops are two storeys and date from the Inter-War period.
Historic Significance:
The existing buildings, lot and street pattern demonstrate the process of the rapid subdivision and development of this part of the Randwick City area in the Inter-War period. This development followed the opening of the Clovelly tram line earlier in the century.
The heritage conservation area is a well preserved example of an entire Inter-War period neighbourhood. The design of the buildings and the range of types are representative of the lifestyles and economic conditions which were current in the Inter-War period.

  1. Section 4.4 of RDCP 2013 'External wall height and ceiling height' includes additional supplementary controls to the development standard for height in the RLEP 2012. For sites subject to a 9.5m building height limit under the RLEP 2012, a maximum external wall height of 8m applies and a minimum ceiling height of 2.7m applies to all habitable rooms.

  1. Section 4.11 of RDCP 2013 'Alterations and additions to residential flat buildings' requires that DAs for the comprehensive refurbishment of older walk up flat buildings have regard to the Randwick City Council Design Ideas for rejuvenating residential flat buildings manual, dated 2006 (exhibit F).

  1. Section 5.1 'Solar access and overshadowing' includes the following controls for the impact of a proposal on surrounding development:

i) Living areas of neighbouring dwellings must receive a minimum of 3 hours access to direct sunlight to a part of a window between 8am and 4pm on 21 June (mid winter).
iii) Where existing development receives less sunlight than this requirement, the new development is not to reduce this further.

  1. The Council's 'Design Ideas for Rejuvenating Residential Flat Buildings' publication contains design principles and concepts to promote and guide the refurbishment of older residential flat buildings (exhibit F) and is referred to in Section 4.11 of RDCP 2013. The publication refers to walk-up residential buildings 'typically built between 1950s - 1970s' and includes the following note at Section 07 Context and Scale:

many older residential flat buildings exceed current floor space ratios (FSR). While generally not encouraged, minor FSR increases may be considered where the benefits outweigh the impacts on the surrounding development.

  1. The Council's 'Design Ideas for Rejuvenating Residential Flat Buildings' publication includes the following under 09 Other Considerations:

While generally not encouraged, variations to existing controls may be considered where it can be demonstrated that the benefits in terms of amenity, environmental performance and streetscape appearance outweigh the impacts of the surrounding development.

  1. Also under 09 Other Considerations is the following in relation to heritage:

A heritage listing does not mean that building cannot be refurbished. However, it does mean that any refurbishment must not detract from the heritage significance of the building or the area.

Expert evidence

Heritage

  1. Expert heritage evidence was provided by Mr Graham Brooks on behalf of the Applicant and Mr Peter Romey on behalf of the Respondent.

  1. The heritage experts agreed on the following:

  • The existing residential flat building on the site contributes to the heritage values of the Moira Cres HCA.
  • There are 40 buildings within the Moira Cres HCA, of which 7 are three storeys and 25 or 26 are two storeys and the rest are single storey. Of the 40 buildings, 32 are residential flat buildings.
  • The Moira Cres HCA consists of a diverse range of styles, however it represents a short period of construction between 1920 and the mid 1930s and consists of limited palette of materials. The close and dynamic juxtaposition of architectural styles is a distinctive feature of the Moira Cres HCA (exhibit 5, p 9, point 3).
  • The Moira Cres HCA is substantially intact as a collection of quality Inter-War residential flat buildings and individual dwellings.

  1. According to Mr Brooks, the existing residential flat building is a late and simplified example of the Federation Free Style of architecture and was constructed in 1927 (exhibit B, p 10). The adjoining residential flat building to the east, at No. 42, was constructed the same time to a very similar design as No. 40. No. 42 and has since undergone alterations and additions, however it is remains a two storey residential flat building containing four apartments (exhibit 5, p 9).

  1. Mr Romey said in oral evidence that the existing residential flat building typifies the basic characteristics of the Moira Cres HCA, including height, setbacks, materials and it is representative of the architectural diversity of the area. In his opinion, the predominate scale of the Moira Cres HCA is two storeys.

  1. Mr Brooks considers that the proposal will not adversely affect the heritage significance of the Moria Cres HCA. In his opinion, the proposal has been carefully designed to represent a process of 'managed change', whereby the visual outcome would respect the architectural character of the existing building and create minimal disturbance to the overall level of integrity of the 40 buildings that comprise the Moira Cres HCA (exhibit 5, p 11).

  1. In Mr Romey's opinion, the Moira Cres HCA is significant because of the consistency of the design quality of the residential flat buildings and the high degree of intactness demonstrated by the residential flat buildings. He considers that the proposal will have an adverse impact on the values of the Moira Cres HCA, as the third storey will compromise the intactness of the Moira Cres HCA and it will create a precedent for other two storey residential flat buildings to seek approval for a third storey addition (exhibit 5, p 11).

Planning

  1. Expert planning evidence was provided by Mr Anthony Rowan on behalf of the Applicant and Mr Gerard Turrisi on behalf of the Respondent.

  1. The planning experts agreed on the following:

  • The height of the proposal is between 11.93m and 12.3m; as the ground level below the ridge line is concealed by the existing building, Mr Rowan has determined the height from the ground floor level and Mr Turrisi has estimated the level of the earth below the ground floor.
  • The FSR of the proposal is 1.11:1.

  1. The planners disagree on the relevance of the Council's 'Design Ideas for Rejuvenating Residential Flat Buildings' publication. Mr Rowan said it is relevant to this proposal, as demonstrated by references to 'all strata buildings in Randwick City' (exhibit F, p 2) and Section 03 Historical Context which describes the 1920s - 1930s Flat Boom (exhibit F, p 4). Mr Turrisi said that the publication is for the rejuvenation of buildings primarily constructed in the 1950s - 70s period and this is evidenced by the examples illustrated within the publication. Mr Rowan said that the publication encourages refurbishment of residential flat buildings and provides some flexibility to complying with development standards and controls and Mr Turrisi said that refurbishment is only encouraged if the proposal fits within its context.

  1. The planning experts disagreed on the compatibility of the proposal, in terms of its height, to the Moira Cres HCA. Mr Rowan said that the desired future character of the HCA is 2 - 3 storeys and this is demonstrated by the table in Section 4.8.3 'Existing Character Values' of RDCP 2013 which states, for scale and form, 'consistency of scale, generally two and three storeys' (exhibit 3, tab 13, RDCP 2013, Section B2, p53). Mr Turrisi said that the predominant scale of the Moira Cres HCA is two storeys. Mr Rowan said that the purpose of the character values is not to preserve the Moira Cres HCA, but to ensure that development within the HCA is compatible with the existing character.

  1. The planners disagree on the whether the 'Solar access for surrounding development' control (exhibit 3, tab 13, RDCP 2013, section 5.1 controls p 30) is met by the proposal. The difference between the planning experts is whether or not the living room on the upper floor, with its only window in the western elevation, is characterised as the primary living area. Mr Rowan said that the kitchen/dining area, which opens onto the rear verandah and faces north, is the primary living area for the purpose of the assessment and Mr Turrisi said that the window to the living room in the western elevation is the only window to the primary living area.

Submissions

  1. Mr Eastman submits that the correct approach to determining the compatibility of the proposal to the Moira Cres HCA is an analysis of the streetscape character within the whole of the Moira Cres HCA and not just in the context of the northern side of Marcel Ave between numbers 36 and 44 (Applicant's outline of submissions par 25a).

  1. Mr Eastman submits that refurbishment of a residential flat building can impose a significant financial burden on private land owners and this is a matter adverted to in Council's own refurbishment policy (exhibit F). In this case, renovation and repair of the existing building will cost around $900,000 (exhibit 3, tab 1). The Applicant seeks a relaxation of the height and FSR development standards to assist with the costs of renovation and repair works to maintain and restore the existing heritage significant building (Applicant's outline of submissions par 3).

  1. Notwithstanding this justification, Mr Eastman submits that the proposal is acceptable because of its compatibility with the scale and character of the contributory buildings within the streetscape (Applicant's outline of submissions par 3).

  1. Mr Eastman submits that the area includes three storey residential flat buildings and the proposal is entirely in context (Applicant's outline of submissions par 4).

  1. In regard to the creation of a planning precedent, Mr Eastman submits that there is little scope for precedent to arise. This is because the existing residential flat building is in the unique position of being in single ownership and in such a dilapidated condition that a wholesale upgrade is required (Applicant's outline of submissions par 41). The Applicant further contends that if it were a precedent, it would be desirable one (Applicant's outline of submissions par 42).

  1. Mr Seton submits that the particular financial situation of the owner is irrelevant to my consideration of the proposal, as the determination must be made with reference to the relevant development standards and controls.

  1. Mr Seton submits that the Council has intentionally zoned the area including the Moira Cres HCA R3 with a 9.5m height limit in order to preserve the existing character of the precinct, whereas elsewhere in the municipality there are R3 zones with greater height limits. He further submits that the proposal considerably exceeds the height and FSR development standards and that the exceedances cannot be characterised as 'minor'.

Findings

Impact of the proposal on the heritage significance of the Moira Cres HCA

  1. I accept the Applicant's submission that it is a question of the impact of the proposal on the whole of the HCA and not only the streetscape of Marcel Avenue. I also accept the Applicant's position that the Moira Cres HCA is two and three storeys in height. The three storey residential flat buildings, coupled with their generally larger footprints, make them a striking feature of the Moira Cres HCA and in my view, the area can therefore be characterised as being two and three storeys and not predominantly two storeys, despite there being many more two storey residential flat buildings within the Moira Cres HCA than three storey residential flat buildings. It is conceivable that a three storey infill building within the Moira Cres HCA may well be found to be justified, on the merits, depending on its context and notwithstanding any exceedance of the height development standard.

  1. However in this matter, the building is existing and it has been identified as a contributory item to the heritage significance of the Moira Cres HCA. The heritage experts agree that the existing building contributes to the heritage significance of the Moira Cres HCA. The statement of significance for the Moira Cres HCA (Exhibit 3, tab 13, RDCP 2013, B2, p 51) relevantly identifies the high integrity of the Inter-War streetscapes and that the area includes the best preserved and most consistent grouping of Inter-War flat buildings in Randwick.

  1. I accept Mr Romey's evidence that the Moira Cres HCA is significant because of the consistency of the design quality of the residential flat buildings and the high degree of intactness demonstrated by the residential flat buildings. It is not each individual contributory building in isolation that is significant, but the group as a whole that has collective significance and their retention as a group is essential to preserving the character of the Moira Cres HCA.

  1. Importantly, the proposal does not preserve the authenticity of the original building. The proposal seeks to add a third level that is to mimic the original architectural style, to appear as if the entire building was constructed in 1927 in the Federation Free Style of architecture. This would compromise the evidence of the of main development period of the Moira Cres HCA, diminish the collective significance of the Inter-War buildings in the Moira Cres HCA and fail to maintain the character of the Moira Cres HCA. A third storey addition to the contributory residential flat building would not compliment the scale, form or detailing of the existing building, instead it would dominate it and irrevocably detract from the contribution the existing building makes to the collective significance of the group of buildings in the Moira Cres HCA.

  1. The proposal would diminish the contribution made by the existing residential flat to the aesthetic heritage significance of the Moira Cres HCA, because the proposal would alter the appearance, the proportions and the integrity of the existing residential flat building and compromise the high integrity of the Inter-War streetscapes. The impact of the proposal on the heritage significance of the Moira Cres HCA is of such consequence, in my view, that the application should be refused.

Variation of the development standards

  1. The effect of the proposed third level to be added the existing residential flat building is non-compliance with the development standards for height and FSR. As the relevant objectives for both development standards are the same and because the exceedance of both development standards is a function of the proposed third level, they have been considered together.

  1. A written request was submitted with the application (exhibit A, pp 18 - 25), pursuant to cl 4.6 of RLEP 2012, that seeks to justify the contravention of the development standards by demonstrating that compliance with the development standards is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravening the development standards, at cl 4.6(3). The Court must be satisfied that the written request seeking to justify the contravention of the development standards has adequately addressed the matters required to be demonstrated and that the proposal is consistent with the objectives for the development standards and the zone objectives, before there is power to grant development consent, at cl 4.6(4).

  1. The written request seeking to justify the contravention of the development standards can be summarised as follows:

  • the pitch of the existing roof does not permit an additional storey to be accommodated within the roof space;
  • the proposal for a three storey building is typical of a number of buildings within the HCA and there are three storeyed hipped roofed buildings next to two storeyed buildings within the HCA;
  • there is no single pattern of building height with the HCA that diminishes the potential for this development to achieve an equivalent three storey height;
  • the development will still appear as an Inter-War residential flat building;
  • there are existing three storey residential flat buildings in the Moira Cres HCA that exceed the height development standard and they do not detract from the significance of the HCA;
  • the proposal is compatible with the HCA because there are three storey buildings within the HCA;
  • the existing residential flat building, in its current condition, detracts from the character of the HCA and provides a lesser contribution to its setting in the HCA;
  • provision of the additional storey will enable appropriate investment into the existing building fabric;
  • both development standards are generic provisions that extend beyond the boundaries of the HCA.

  1. The relevant objectives for both the development standards includes to ensure that the size and scale of development is compatible with the desired future character of the locality; to ensure that the development is compatible with contributory buildings in a conservation area or near a heritage item and to ensure that development does not adversely impact on the amenity of adjoining an neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views.

  1. The relevant zone objectives include to recognise the desirable elements of the existing streetscape and built form and to protect the amenity of residents.

  1. The maximum height for the site is 9.5m above ground level and the proposal is between 11.93m and 12.3m. The maximum FSR for the site is 0.75:1 and the proposal is 1.11:1. The Council contends that these non-compliances with the development standards result in a proposal that is of a size, scale and character that is not compatible with the adjoining buildings, the immediate locality, or the desired future character of the area. The planning experts addressed these issues in their joint report (exhibit 4) and in oral evidence.

  1. The statement in the written request that the existing building, 'in its current condition... physically detracts from the character of the HCA' (exhibit A, p18) and 'provides a lesser contribution to its setting in the HCA' (exhibit A, p23) is not supported by the evidence of the heritage experts. The heritage experts agreed that the existing residential flat building on the site contributes to the heritage significance of the Moira Cres HCA and I accept the evidence of the heritage experts.

  1. The desired future character of the Moira Cres HCA is to preserve the grouping of Inter-War streetscapes, which contribute to the special and unique character of the Moira Cres HCA. It follows from my findings in regard to the impact of the proposal on the Moira Cres HCA, that the size and scale of the proposal is incompatible with the desired future character of the Moira Cres HCA. The proposal is also not compatible with the contributory building on the site. The proposal is an inappropriate response to the high integrity of the Inter-War streetscapes.

  1. I am not satisfied that the written request seeking to justify the contravention of the development standards, when tested against the relevant objectives, adequately addressed the matters in cl 4.6(3), namely that compliance with the development standard is unreasonable or unnecessary in the circumstances and that there are sufficient environmental planning grounds to justify contravening either development standard. In reaching my conclusion, I have considered the merits of the application because it is necessary to do so in order to evaluate whether the proposal is consistent with the objectives of the development standards.

Precedent

  1. I prefer and accept Mr Romey's evidence that the proposal, if approved, would provide a precedent for the contributory two storey residential flat buildings within the Moira Cres HCA to add a third level. While the notion of precedent is treated with considerable caution by the Court, I am satisfied that it is a valid consideration in this matter.

  1. In accordance with the findings of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101 at par 34, I accept that there is sufficient probability that future applications will be made as a consequence of an approval of this proposal.

  1. I do not accept the Applicant's submission that only buildings in single ownership and in a dilapidated condition are an attractive proposition for an additional level. This proposal, if approved, would provide an precedent for owners of other two storey contributory items, whether or not they are in single ownership, to consider the economics of adding an additional level in order to fund maintenance or other improvements to the existing building.

  1. In my view, the impact of third storey additions to a number of contributory items with the Moira Cres HCA would be detrimental to the identified heritage values of the HCA and would significantly erode the authenticity, integrity and intactness of the group of Inter-War residential flat buildings and their relationship to each other.

Financial burden of refurbishment on the Applicant

  1. The Applicant has put to me an argument that the refurbishment of the residential flat building will impose a significant financial burden in the amount of $937,924 (exhibit 3, tab 1, f 2), which is the estimated cost of the development. The Applicant seeks a relaxation of the height and FSR development standards to assist with the costs of renovation and repair works to maintain and restore the existing contributory building. The Council on the other hand submits that the particular financial situation of the owner is irrelevant to my consideration of the proposal.

  1. I am inclined to agree with the Council's submission regarding the irrelevance of the personal financial circumstances of the Applicant. Relevantly, the Senior Commissioner found, in Davies v Penrith City Council [2013] NSWLEC 1141 at par 120, 'It is a long established law that proper planning decisions are not made on such a basis [of anthropocentric considerations]. Development consents run with the land and proposals for consent are to be assessed in that light, rather than by consideration of what might be 'necessary' for any present or proposed occupants or the beneficiaries of any consent.'

  1. Even if I agreed with the Applicant's submission on the justification of the proposal on the basis it is required to fund the refurbishment of the existing building, this is outweighed by my finding that the proposal will have a detrimental impact on the heritage significance of the Moira Cres HCA.

The relevance of 'Design Ideas for Rejuvenating Residential Flat Buildings'

  1. While not a great deal turns on it, I am satisfied that the Council's publication, 'Design Ideas for Rejuvenating Residential Flat Buildings' (exhibit F) is a relevant consideration in this matter. The publication states that a significant proportion of residential flat buildings in the municipality were typically built between the 1950s - 1970s and that many of these buildings were built at a minimal cost during a period with few planning controls and limited regard for aesthetic or internal amenity and have a 30-60 year life span (exhibit F, p 2). The publication is clearly aimed at rejuvenating bland, poor quality residential flat buildings with little amenity, however it does not exclude residential flat buildings of better design quality or from earlier periods, such as the existing residential flat building which is the subject of these proceedings.

  1. My finding that the proposal will detract from the heritage significance of the Moira Cres HCA takes precedence over the potential flexibility, in regard to development standards, provided by the publication (exhibit F, p11), as the benefits of the proposal do not outweigh the impacts on the surrounding development, in this matter, the Moira Cres HCA.

Overshadowing of No. 40 Marcel Avenue

  1. Given the above findings, it is not necessary to make a finding on the disagreement of the planning experts on whether or not the living room in the centre of the upstairs apartment on the western side of no. 40 Marcel Avenue is the primary living area of the apartment.

Conclusion

  1. Having regard to the relevant planning controls and the evidence provided, I find the proposal does not preserve the authenticity of the original building and as a result the proposal compromises the evidence of the main development period of the Moira Cres HCA, diminishes the collective significance of the Inter-War buildings in the Moira Cres HCA and fails to maintain the character of the Moira Cres HCA. The proposal would not complement the scale, form or detailing of the existing building, instead it would dominate it and irrevocably detract from the contribution the existing contributory item makes to the collective significance of the group of buildings in the Moira Cres HCA.

  1. There is no power to grant development consent as the proposal's non-compliance with the development standards for height and FSR is not justified because the proposal is not consistent with the objectives for the development standards. The proposal is incompatible with the desired future character of the Moira Cres HCA, as it does not preserve the intactness of the Inter-War streetscapes which contribute to the special and unique character of the Moira Cres HCA.

  1. The proposal would set an undesirable precedent for owners of other two storey contributory items to consider the economics of adding an additional level to fund maintenance or improvement works. The impact of third storey additions to a number of two storey contributory items within the Moira Cres HCA would be detrimental to the identified heritage significance of the Moira Cres HCA, as it would erode the authenticity, integrity and intactness of the group of Inter-War buildings.

Orders

  1. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 210/2013 for alterations and additions to a residential flat building is refused.

3. The exhibits, other than exhibits 1 and E, are returned.

____________

Susan O'Neill

Commissioner of the Court

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Decision last updated: 14 January 2014

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Davies v Penrith City Council [2013] NSWLEC 1141