Tier Architects Pty Ltd v Burwood Council

[2022] NSWLEC 1036

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tier Architects Pty Ltd v Burwood Council [2022] NSWLEC 1036

Hearing dates:

9 December 2021

Date of orders:

6 January 2022

Decision date:

06 January 2022

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The applicant is granted leave to amend the application to rely on amended architectural plans.

(2) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(3) The appeal is upheld.

(4) Development Application No. 2021.1 for demolition of an existing dwelling, consolidation of 5 lots into one, alterations and additions to two existing dwellings and construction of a part 3 and 4 storey boarding house containing 75 boarding rooms accommodating 149 boarders and one manager, over two levels of basement parking, at 2, 2A and 4 Cooper Street, Strathfield, is approved, subject to the conditions of consent at Annexure A.

(5) The exhibits, other than Exhibits 1, A, B, C, D and E, are returned.

Catchwords:

DEVELOPMENT APPLICATION – boarding house – local heritage item – impact on the heritage significance of the heritage item – impact on the heritage significance of the conservation area on the opposite side of the street

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Affordable Rental Housing) 2009 Pt 2, Div 3

State Environmental Planning Policy (Housing) 2021

Burwood Local Environmental Plan 2012 cll 4.3, 4.4, 6.6

Cases Cited:

Barrak v City of Parramatta Council [2018] NSWLEC 67

Grigorakis v Bayside Council [2016] NSWLEC 1573

Texts Cited:

Burwood Development Control Plan

Category:

Principal judgment

Parties:

Tier Architects Pty Ltd (Applicant)
Burwood Council (Respondent)

Representation:

Counsel:
C Leggat SC (Applicant)
R O’Gorman-Hughes (Respondent)

Solicitors:
Conomos Legal (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2021/109397

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 2021.1 for demolition of an existing dwelling, consolidation of 5 lots into one, alterations and additions to two existing dwellings and construction of a part 3 and 4 storey boarding house containing 75 boarding rooms accommodating 149 boarders and one manager, over two levels of basement parking (the proposal) at 2, 2A and 4 Cooper Street, Strathfield (the site) by Burwood Council (the Council).

2. The appeal was subject to conciliation on 13 August 2021, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 13 September 2021, pursuant to s 34(4) of the LEC Act.

3. On 14 October 2021, the Court exercised the consent authority’s agreement under cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) to the amendment of the application and ordered that the amended application be lodged on the NSW planning portal within 7 days, subject to an order that the applicant pay the Council’s costs thrown away as a result of the amendment, pursuant to s 8.15(3) of the EPA Act, as agreed or assessed.

4. On the first day of the hearing, leave was unopposed and granted to the applicant to amend the application in response to agreements made between the planning, urban design and heritage experts in their joint report (Ex 2), subject to an order that the applicant pay the Council’s costs thrown away as a result of the amendment, pursuant to s 8.15(3) of the EPA Act, as agreed or assessed. The Council agreed to the amendment of the application, and the amended application was lodged on the NSW planning portal, pursuant to cl 55 of the EPA Regulation, on 9 December 2021. The amended plans were admitted into evidence as Exhibit A.

Issues

5. The Council’s contentions can be summarised as:

• The proposal would have a detrimental impact on the heritage significance, including the curtilage and setting, of the heritage items located at 2 and 2B Cooper Street and 45 Wentworth Street, and upon the Philip Street Heritage Conservation Area (Philip St HCA).

• The proposal is not compatible with the existing or desired future character of the local area.

• The built form and design of the proposal is unacceptable having regard to the façade, materials and architectural expression of the proposal and the proposal fails to achieve design excellence.

• The proposal will not provide an acceptable level of amenity to future residents.

The site and its context

6. The site consists of 5 lots containing 3 dwellings and is bounded to the north by Cooper Street and to the south by Cowdery Lane. The site has an area of 3,045m² and a frontage to Cooper Street of 60.964m.

7. The site contains three single storey dwellings and some ancillary structures. 2 Cooper Street is identified as a local heritage item and occupies the 3 central lots of the total of 5 lots that make up the site. 4 Cooper Street is the westernmost lot of the site and 2A Cooper Street is the easternmost lot. Each of the 5 lots has a frontage to Cooper Street and a frontage to Cowdery Lane.

8. The area to the north of the site, on the opposite side of Cooper Street, is a low density residential area identified as a heritage conservation area.

9. The Strathfield Private Hospital is on the southern side of Cowdery Lane, opposite the site, and contains the main building which is three storeys over a basement with large gabled roofs.

The proposal

10. Development Application No. 2021.1 was lodged on 6 January 2021.

11. The proposal is to demolish the dwelling at 2A Cooper Street and retain the dwellings at 2 and 4 Cooper Street. The proposal includes alterations and additions to the retained dwellings to covert 2 Cooper Street into communal rooms and a manager’s office, and to convert 4 Cooper Street into boarding rooms. The proposal includes demolishing a small portion of the rear of the dwelling at 2 Cooper Street.

12. The proposal is for a three-storey U-shaped building at the rear of the two retained dwellings and to the east of the house at 2 Cooper Street on the lot of 2A Cooper Street. There is a fourth-storey element to the portion of the proposed building on the westernmost lot. The proposed building contains two lifts and it has a flat roof concealed by parapet walls. The proposed building is setback at least 6m from the retained portion of the heritage item at 2 Cooper Street. The proposed building is setback at least 3m from the Cowdery Lane boundary.

13. The proposal includes a two storey basement accessed from Cowdery Lane. The proposal includes onsite parking for 39 cars, 15 motorbikes and 15 bicycles.

14. The proposal has 75 boarding rooms, including a manager’s room and can accommodate a total of 149 boarders.

Planning framework

15. The site is zoned R1 General Residential pursuant to the Burwood Local Environmental Plan 2012 (LEP 2012). LEP 2012 (Amendment No.16) commenced on 17 January 2020. The objectives of the R1 zone, to which regard must be had, are:

• To provide for the housing needs of the community.

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

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

16. The site is located adjacent to the northern boundary of the R1 zone, and the northern side of Cooper Street is zoned R2 Low Density Residential (Land Zoning Map – Sheet LZN_001 of LEP 2012).

17. Boarding houses are a nominate permissible use with consent in the zone. The application is made pursuant to Pt 2, Div 3 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). SEPP ARH applies to the site at cl 26 and to the proposed development at cl 27(1).

18. State Environmental Planning Policy (Housing) 2021 (SEPP Housing) commenced on 26 November 2021 and repeals SEPP ARH. SEPP Housing contains savings and transitional provisions at Sch 7, which applies to the application at cl 2(a). Pursuant to s 4.15(1) of the EPA Act, SEPP Housing is matter for consideration.

19. The four eastern lots of the site have a height of buildings development standard of 11m and the westernmost lot has a height of buildings development standard of 14m (cl 4.3 and Height of Buildings Map HOB_001 of LEP 2012). The Council submitted that the proposal complies with the height of buildings development standards.

20. The four eastern lots of the site have a floor space ratio (FSR) development standard of 1.2:1 and the westernmost lot has an FSR development standard of 1.5:1 (cl 4.4 and Floor Space Ratio Map FSR_001 of LEP 2012). SEPP ARH at cl 29(1)(c)(i) includes a floor space bonus for boarding house development of 0.5:1 for the lots that are not identified as a local heritage item, as residential flat buildings are a permissible use in the R1 zone. The Council submitted that the proposal complies with the FSR development standards including the bonus.

21. The site contains a local heritage item, identified as “Victorian house” at 2 Cooper Street (Lots 23–24, DP 2089; Lot 1, DP 455342) (Item 190, Sch 5 to LEP 2012).

22. The site is adjoining a local heritage item to the east at 45 Wentworth Street, Strathfield (“Victorian villa”, Item 207, Sch 5 to LEP 2012).

23. The Philip St HCA (identified as C16, Sch 5 and Heritage Map – Sheet HER_001 of LEP 2012) is on the northern side of Cooper Street, opposite the site, and extends over parts of four blocks between Cooper Street and Parramatta Road. There are heritage items within the Philip St HCA.

24. Development consent is required for demolishing or altering the exterior of a heritage item or by making structural changes to its interior or by making changes to anything inside the item that is specified in Sch 5, at cl 5.10(2)(i) of LEP 2012.

25. Clause 5.10(4) of LEP 2012 requires the consent authority to consider the effect of the proposed development on the heritage significance of an item or heritage conservation area. The objectives of cl 5.10, at subcl (1), are:

(a) to conserve the environmental heritage of Burwood,

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

26. Clause 6.6 applies to 2A Cooper Street (Lot 1 DP 320999), the easternmost lot of the site, at (2)(a). The objective of cl 6.6 is to protect the character of Cooper Street, Strathfield, including buildings of heritage significance. Subclause (3) is in the following terms and the Council submitted that the proposal complies with these requirements on Lot 1 DP 320999:

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that—

(a) there will be a minimum 6 metre setback from the frontage of Cooper Street, Strathfield, and

(b) there will be a minimum 3 metre setback from the frontage of Cowdery Lane, Strathfield, and

(c) the maximum height of any building within a 16 metre setback of the frontage of Cooper Street, Strathfield will not exceed 11 metres.

27. The Council contends that the landscaped treatment of the front setback is not compatible with the streetscape of Cooper Street. A consent authority must not refuse consent to development to which Div 3 of SEPP ARH applies if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located, at cl 29(2)(b).

28. The Council submitted that the proposal complies with the standards for boarding houses at cl 30 of SEPP ARH.

29. The Council submitted that the proposal is not compatible with the character of the local area. Clause 30A of SEPP ARH is in the following terms:

30A Character of local area

A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

30. SEPP Housing incorporates the provisions of SEPP ARH regarding boarding house development, with some changes to the terms of those provisions, under Pt 2, Div 2. Under SEPP Housing, the floor space bonus is less than under SEPP ARH, because the bonus is 25% of the FSR development standard, at cl 24(2)(a)(ii), instead of 0.5:1.

31. The Council submitted that the requirements for communal living areas and communal open space under cl 24 of SEPP Housing are met by the proposal.

32. At cl 25(2) of SEPP Housing, development consent must not be granted under Div 2 unless the consent authority considers whether the design of the boarding house will be compatible with the desirable elements of the character of the local area.

33. At cl 25(2)(c), a boarding house with at least 3 storeys is to comply with the minimum building separation distances specified in the Apartment Design Guide (ADG). The ADG, at 3F Visual Privacy, includes the following design criteria:

“Separation between windows and balconies is provided to ensure visual privacy is achieved. Minimum required separation distances from buildings to the side and rear boundaries are as follows:

Building Height	Habitable rooms and balconies	Non-habitable rooms
Up to 12m (4 storeys)	6m	3m

Note: Separation distances between buildings on the same site should combine required building separations depending on the type of room.”

34. The Burwood Development Control Plan (DCP), which commenced on 1 March 2013, applies to the site at Section 1.3. Section 3.3.6 concerning the Cooper Street Precinct, Strathfield was added to the DCP on 15 November 2021 and applies to the proposal.

35. Section 2.4 Streetscapes of the DCP has an objective at O1 to ensure new development responds to, reinforces and sensitively relates to the spatial characteristics of the existing urban environment.

36. Section 4.7 Heritage in Residential Precincts of the DCP has an objective at O4 to ensure that development located in the vicinity of heritage property is designed and sited in a manner sympathetic to the significance of the heritage property and its setting. The relevant provisions under Section 4.7 include the following:

“Building Design Considerations

P6 Development of a heritage property must:

(i) Be sympathetic in terms of its scale and character

(ii) Employ materials and detailing that responds to the traditional form and style of the existing structure

(iii) Provide adequate setbacks, and maintain a setting around the heritage property, to facilitate the item’s interpretation.

P8 Alterations and additions to a heritage property must not dominate the character of the existing structure, nor be of excessive scale relative to the original building.

Views and Vistas

P35 Development of a heritage property, or development in its vicinity, must:

- Provide an adequate area of land around the development to allow interpretation of the significant building or place

- Not detract from the setting of the heritage property

- Retain and respect significant views/vistas from the public domain to a heritage property, as well as the views/vistas originating from the heritage property itself.

New Development

P37 There are instances where new development may be built on the site of a heritage item, or within a heritage conservation area. Where this occurs, the new development must ensure it respects and interprets the predominant heritage character of that particular site or precinct.

P40 New development, or alterations and additions to existing development, that is located in the vicinity of a heritage property, must be designed and sited to:

- Have regard for, and be compatible with, the significance of the heritage property

- Reflect the bulk, scale, height and proportion of the heritage property

- Respect the front garden setting, any established setbacks, and views and vistas of the heritage property

- Be recessive in character and not dominate the heritage property

- Interpret the materials and architectural detailing of the heritage property

- Respond to the building alignment of the heritage property.

P40A Any development having three storeys or more which is contiguous to a heritage property will be expected to observe a 5m minimum setback from the heritage property’s boundary (and 4m minimum setback for any below-ground excavation/basement).

The purpose of this setback is to:

- Provide for a sensitive separation of buildings and maintenance of a heritage item’s setting, particularly the “open garden setting” and generous setbacks typical of heritage-listed houses. A setback will be required irrespective of the setback of the heritage building from its boundary.

- Enable deep soil landscaping and substantial trees to be accommodated on the development site to provide a landscape buffer. This requirement applies irrespective of whether there is existing landscaping on the heritage property.

- Limit the potential for excavation and construction works to negatively affect the structural stability of the heritage item, or affect established trees/landscaping within the heritage property.

- Not prejudice the future development of heritage properties, particularly extensions. It is important that heritage places remain viable into the future.

- Limit the opportunity for negative impacts upon the amenity (especially noise and visual privacy) enjoyed by the residents/occupants of the heritage property.”

37. Section 5.4 Boarding Houses of the DCP has an objective, O4, to maintain the residential amenity of both the property and locality, where the boarding house development is to be located. The relevant provisions under section 5.4 include the following:

“Building Form and Appearance

P1 Building form and appearance of new boarding houses where viewed from public streets and adjoining sites are to be compatible with surrounding development.

P2 Boarding houses shall be designed to reflect the predominant design features and respect the character of streets on which they are located.

Design elements include:

• Massing and proportions.

• Roof form and pitch.

• Façade articulation and detailing.

• Window and door proportions.

• Features such as verandahs, eaves and parapets.

• Building materials, patterns, textures and colours.

• Decorative elements.

• Vehicular footpath crossings.

• Fence styles.

• Building setbacks.

• Building height and number of storeys.

P3 Boarding houses that are located within or in the vicinity of a Heritage Conservation Area or Heritage Item must be designed sympathetically to the significance of the heritage property.

Setbacks

P14 (ii) Side and rear setback provisions for Residential zones:

Building Component	Minimum Setback from Side/Rear Boundaries
Ground floor	2.0m
First floor	3.5m
Second floor and above	5.0m

38. Section 3.3.6 Cooper Street Precinct, Strathfield, of the DCP, identifies the Cooper Street Precinct as the majority of the block bounded by Cooper Street, Wentworth Road and Cowdery Lane, at Figure 22. The relevant objectives and provisions are:

“Site Planning and Response to character

O3 To balance increased density with heritage conservation values as a key consideration.

P1 Any proposed development will need to preserve and enhance and not detract from the heritage conservation values of the Heritage Conservation Area to the north of Cooper Street.

P2 Proposed massing and overall built form will need to respond to the ‘fine grain’ character of the Heritage Conservation Area (HCA) to the north of Cooper Street.

Proposed massing and overall built form will need to be designed and articulated in a way that ensures a ‘human scale’ when visible from Codery Lane.

P4 Development consent shall not be issued unless the applicant has clearly demonstrated that the proposal has considered and responded to:

• The surrounding context of the precinct,

• The area’s contribution elements (physical and environmental),

• The heritage values of the HCA to the north and surrounding heritage items.

Setbacks

O1 To ensure the street setback enhances the setting of the building, and that side and rear setbacks create usable land and maintain amenity between neighbouring sites.

O2 To ensure that the built form improvise the landscape character, encourages landscape screening and contributes to the landscape softening of Cooper Street, Cowdery Land and areas adjacent to common boundaries.

O3 To ensure deep soil areas contribute to the provision of mature planting and water filtration to all setbacks.

O4 To ensure adequate separation distances to protect the curtilage and buildings of heritage items.

Primary Setbacks

P3 Primary setback to Cowdery Lane shall comply with provision (3)(b) under cl 6.6 of LEP 2012.

Side Setbacks and Separation Distances

P1 Side setbacks and separation distances are to comply with the Apartment Design Guide design criteria 1 under Objective 3F-1.

P4 The minimum separation distance to all facades of a heritage item within the same site or an amalgamated site is 6m.”

Public submissions

39. Five resident objectors and a spokesperson on behalf of a nearby school gave evidence at the commencement of the hearing on-site. Their concerns can be summarised as:

• The school’s representative is concerned for the safety of students as pedestrians in Cooper Street and for traffic safety generally, as additional traffic threatens the ability of staff to protect students when supervising drop offs and pick-ups. The campuses of the school are close to the site and generate a lot of traffic.

• There are many other boarding house developments in the local area.

• Cowdery Lane was intended as rear access to 20 houses and now it is a major access to the Strathfield Private Hospital, apartments and other developments. The lane can be blocked by bins.

• The proposal is contrary to the heritage character of the heritage item and the Philip St HCA. The architectural expression of the proposal is inappropriate.

• The proposal will double the population of the street.

• The proposal will result in many more cars in the local streets.

• An overcrowded boarding house is inappropriate accommodation for the health, including the mental health, of its future residents. COVID-19 has demonstrated that overcrowded boarding houses allow the spread of infection.

• The cost estimate of the development is an underestimate.

Expert evidence

40. The applicant relied on the expert evidence of Jeff Mead (planning), Alan Cadogan (urban design) and Stephen Davies (heritage).

41. The Council relied on the expert evidence of Gerard Turrisi (planning), Gabrielle Morrish (urban design) and Brian McDonald (heritage).

42. The six experts prepared a joint report (Ex 2) and the heritage experts were required to give oral evidence.

43. In their joint report, the experts reached agreement on all contentions. Their agreed position on amendments to the proposal are included in the amended architectural plans (Ex A). Notwithstanding the agreement of the experts, the Council pressed all but one of the contentions raised in the Statement of Facts and Contentions (Ex 1). The one contention not pressed by the Council on the basis of the amended architectural plans (Ex A) related to the height of the proposal.

Submissions

44. The Council submitted that the site is constrained, and so any expectation to develop the site to the building envelope given by the development standards and the bonus floor space under SEPP ARH is unreasonable. The fourth-storey element is excessive in scale and contrary to the provisions for heritage in residential precincts in the DCP.

45. The Council submitted that the objectives for setbacks under Section 3.3.6 of the DCP for the Cooper Street Precinct extend beyond merely providing visual privacy, whereas the focus for the design criteria for separating buildings in the ADG at Section 3F is to protect visual privacy. It is the Council’s position that the setback to the Cowdery Lane boundary should be 6m and not 3m.

46. The Council submitted that the heritage constraints of the site reduce the opportunities for the future development of the site such that the building envelope given by the development standards and the relevant provisions of the DCP cannot be fully realised. The Council referred to Barrak v City of Parramatta Council [2018] NSWLEC 67 at [74] and Grigorakis v Bayside Council [2016] NSWLEC 1573 at [35] to support the propositions that the height of buildings development standard is not an entitlement and that there is no primacy of the planning controls.

47. The applicant submitted that the contentions are resolved by the agreement of the experts and the consequent amendment of the application to reflect the experts’ agreement. Other minor disagreements have been addressed by agreed conditions of consent.

Consideration

48. The newly inserted Section 3.3.6 Cooper Street Precinct, Strathfield into the DCP states the following:

“The precinct was the subject of an applicant led Planning Proposal and the Department of Planning, Industry and Environment considered the site suitable for medium and high density development and approved the rezoning in 2019. The Cooper Street Precinct, Strathfield is situated in a locality with a level topography, which facilitates very walkable distances to a major transport node.”

49. The Council submitted that the planning proposal was not supported by the Council. The Council commissioned a Heritage Peer Review prepared by GML Heritage and dated February 2018 (Ex 3, tab 24, the peer review) of the heritage advice supporting the planning proposal. The peer review includes the following opinion regarding the planning proposal:

“The existing zoning allows for low density residential development up to 8.2m in maximum height. The proposed rezoning of this part of the site [immediately to the west of the heritage item at 2 and 2B Cooper St] allows for apartment buildings up to 11m in height. This increase in height and density aims to facilitate the construction of apartment building sup to three and four storeys high in the area immediately adjacent to the heritage items. Such development has the potential to impact on the setting and visual curtilage of the heritage items, which currently sit within a garden setting and largely single storey streetscape.

The proposed rezoning does not reflect the scale and height of the adjacent heritage items, and may result in development that would dominate the heritage items, degrade their setting, and impede views of the heritage items to and from the public domain, resulting in a moderate to high level of adverse impact.”

50. The peer review recommended:

“Should the rezoning of the site be pursued, the heritage impacts should be avoided and/or mitigated. In order to mitigate the heritage impact of any rezoning on the site, the area of increased height and density should be limited to the southern half of the block, with retention of the heritage items and low density zoning along the northern half of the block…”

51. The Department of Planning & Environment (the Department), in its undated “Plan finalisation report” regarding the planning proposal (Ex 3, tab 25, the Department’s report), recommended that the Minister’s delegate, as the local plan-making authority, determine to make the draft LEP (Amendment No.16), on a number of bases including (p 24):

“It [the draft LEP] responds to its heritage context by ensuring any future development will be subject to substantial street setback requirements to Cooper Street and building height requirements near retained heritage items…”

52. The block model identified as the concept plan in the Department’s report shows a three-storey building (11m high) directly to the rear of the heritage item at 2 Cooper Street linked to a three-storey building (11m high) occupying 2A Cooper Street, and a four-storey building (14m high) occupying 4 Cooper Street, with a three-storey element (11m high) at the street front to Cooper Street (Figures 8 and 9, p 14). The building envelope on 4 Cooper Street includes a setback to the shared eastern boundary with the heritage item at 2 Cooper Street. Clause 6.6(3)(c) of LEP 2012 requires the maximum height of any building within the 16m setback of the frontage to Cooper Street not to exceed 11m.

53. The proposal, as amended, retains the existing house at 4 Cooper Street and locates the four storey element on the lot to the rear of the retained dwelling, abutting the eastern boundary at the rear. The difference between the concept plan and the proposal is that the dwelling at 4 Cooper Street is retained, and the four-storey element at the rear of the dwelling does not have a setback to the eastern boundary. The proposal is consistent with the requirements of cl 6.6(3) of LEP 2012.

54. I do not accept the Council’s submission that the mandatory consideration of the effect of the proposal on the heritage significance of the heritage item at 2 Cooper Street, under cl 5.10(4) of LEP 2012, necessarily means that the development standards determining the building envelopes, and specifically the building envelope for 4 Cooper Street, cannot be realised in some form. The Council’s concerns regarding the impact of the building envelopes envisaged by the planning proposal on the heritage significance of the heritage items were presented to the Department in the peer review. The Department’s report assessing the final version of the planning proposal had regard to the constraints presented by the heritage items on the development of the lots that form the block the subject of the planning proposal. The Department’s report found that the draft LEP should be made, concluding that the amending LEP would ensure the retention of the heritage items and that the building envelopes adequately responded to the heritage context by ensuring substantial street setbacks to Cooper Street and reduced building heights near the heritage items. I am satisfied, on the basis of the evidence before me, that the amending LEP adequately accounted for the constraint of retaining the heritage items, including the existing dwelling at 2 Cooper Street, in the context of the policy decision that the block become a higher density transition area between the denser urban area around the railway station and the low density residential area to the north of Cooper Street. I understand that the Council did not agree with the policy decision.

55. The proposal is a reasonable trade-off between the building envelopes given by the development standards under LEP 2012 and retaining and enhancing the setting of the heritage item. The proposal retains the dwelling at 4 Cooper Street, which forms part of the setting of the heritage item at 2 Cooper Street and locates the four-storey component of the proposed development to the rear of the dwelling at 4 Cooper Street, abutting the eastern boundary and without a side setback on the lot. The retention of 4 Cooper Street, which is not a heritage item, is a positive outcome and contributes to the setting and interpretation of the heritage item. The massing and overall built form of the proposed building responds to the location and character of the Philip St HCA.

56. I accept the evidence and the agreement of the experts in their joint report. I accept Mr McDonald’s evidence that he has considered the impact of the proposal on the heritage significance of the heritage item in the context of the development standards for the site and the planning controls, and that in his view, the proposal is acceptable, notwithstanding that he would prefer there is not a fourth storey element. I accept the agreement of the experts that the fourth-storey element will be difficult to discern because it is obscured by the dense vegetation in the front setbacks of 2 and 4 Cooper Street and it is obscured by the building envelope of the heritage item itself when viewed from Cooper Street. I accept the agreement of the experts that considerable effort and design skill has been applied to further minimising potential impacts of the built form of the fourth storey and the cumulative effect of the amendments made to the proposal made it acceptable.

57. I am satisfied, on the basis of the experts’ evidence, that the proposal responds to, reinforces and sensitively relates to the spatial characteristics of the existing urban environment and that the proposed building has been designed and sited in a manner sympathetic to the significance of the heritage item and its setting.

58. I accept the agreement of the experts that the proposal will have an acceptable presentation to Cowdery Lane, because the building form is broken into two elements to reduce its massing and to better respond to the likely future built form to setback ratio that will occur along the laneway as the area is redeveloped. I am satisfied by all the evidence before me, including the site view, that the 3m rear setback to Cowdery Lane is consistent with the existing character of the laneway, particularly the narrow setback of Strathfield Private Hospital to the laneway, and provides sufficient area for landscaping to soften the proposal’s elevation to the laneway and achieves a ‘human scale’ when viewed from Cowdery Lane.

Conclusion

59. I have considered the effect of the proposal on the heritage significance of the heritage item and the Philip St HCA and I am satisfied that the proposal will have an acceptable impact on the heritage item and the Philip St HCA, because the proposal retains the two dwellings at 2 and 4 Cooper Street, and their landscaped front setback, when viewed from Cooper Street. The proposal provides a sufficient setback between the heritage item and the new building, such that the heritage item can be seen in the round on the site.

60. I am satisfied that the landscape treatment of the setbacks to Cooper Street and Cowdery Lane are compatible with both streetscapes and that the design of the proposal is compatible with the desirable elements of the character of the local area. I am satisfied that the proposal responds to, reinforces and sensitively relates to the spatial characteristics of the existing urban environment and successfully balances the increased density of the site with its heritage values, and contributes to the transition between the denser urban environment around the railway station and the low density residential character of the Philip St HCA, as envisaged by the strategic planning exercise that informed the rezoning of this block.

Orders

61. The Court notes:

1. That Burwood Council as the relevant consent authority agreed, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending Development Application No. 2021.1.

2. That the amended development application was lodged on the NSW planning portal on 9 December 2021.

62. The orders of the Court are:

1. The applicant is granted leave to amend the application to rely on amended architectural plans and other documents.

2. The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

3. The appeal is upheld.

4. Development Application No. 2021.1 for demolition of an existing dwelling, consolidation of 5 lots into one, alterations and additions to two existing dwellings and construction of a part 3 and 4 storey boarding house containing 75 boarding rooms accommodating 149 boarders and one manager, over two levels of basement parking, at 2, 2A and 4 Cooper Street, Strathfield, is approved, subject to the conditions of consent at Annexure A.

5. The exhibits, other than Exhibits 1, A, B, C, D and E, are returned.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (379629, pdf)

**********

Decision last updated: 24 January 2022