Totem Queens Park Pty Ltd v Waverley Council

[2004] NSWLEC 712

Land and Environment Court

of New South Wales

CITATION:	Totem Queens Park Pty Ltd v Waverley Council [2004] NSWLEC 712
PARTIES:	APPLICANT Totem Queens Park Pty Ltd RESPONDENT Waverley Council
FILE NUMBER(S):	10986 of 2004
CORAM:	Bly C
KEY ISSUES:	Development Application :- Demolition of existing dwelling - erection of 2 attached dwellings - streetscape and character requirments of development control plans - building height
LEGISLATION CITED:	Waverley Local Environmental Plan 1996 Development Control Plan No. 2 - Dwelling House Development
CASES CITED:	Zhang v Canerbury City Council [2001] 115 LGERA 373
DATES OF HEARING:	17 and 19/11/2004
DATE OF JUDGMENT:	12/21/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr D Loether, solicitor SOLICITORS Normanwaterhouse RESPONDENT Mr S Brockwell, barrister SOLICITORS Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

21 December 2004

10986 of 2004 Totem Queens Park Pty Ltd v Waverley Council

JUDGMENT

1 This appeal relates to development application No. D 828/03 which is for the demolition of an existing dwelling and the erection of two attached dwellings on the property known as 3-5 Bourke Street, Queens Park, Bronte. The two proposed metal clad dwellings are to extend over three levels with each dwelling having a courtyard area with swimming pool and a detached garage each containing a two-car car-stacker.

2 Extracted from the architect's drawings and included in Appendix "A" hereto are the north, south and east (streetscape) elevations of the building.

3 The site is located on west side of Bourke Street, near its intersection with Birrell Street. It comprises three separate lots and has a total area of about 428 sq m. It falls approximately 3.3 m between Bourke Street and its narrow frontage to Fitzgerald Lane at the rear.

4 The surrounding residential locality generally comprises one to two-storey dwelling houses of Victorian to early Federation origin. There are also a number of newer buildings including recent infill developments and numerous rear and upper storey alterations and additions.

5 The appeal was conducted as an on-site hearing. This judgment concludes that the development application should be refused essentially because the design of the dwellings is not responsive to the requirements of the applicable planning controls.

6 The site is zoned 2(a) Residential - Low Density under Waverley Local Environmental Plan 1996 ("the LEP") and in this zone the proposal is permissible with development consent. The relevant objectives of this zone are:

a) To allow for housing only in the form of dwelling houses and boarding houses;
b) To maintain and improve the amenity and existing characteristics of localities predominantly characterised by dwelling houses.

7 Clause 10(2) of the LEP in effect requires that development consent shall not be granted to the carrying out of any development unless the development meets one or more of the objectives of the zone. This development, comprising two dwelling houses meets objective (a) and thus complies with cl 10(2). However, the respondent argues that the proposal would not maintain and improve the amenity and existing characteristics of this locality, contrary to objective (b), this being one of the issues of the case.

8 Also applicable is Development Control Plan No. 2 - Dwelling House Development ("DCP 2"). Section 4.0 of DCP 2 deals with the size and bulk of dwelling houses by applying a floor space ratio control which varies depending on site area. There was no suggestion that the proposed building has an excessive floor space ratio.

9 In addition to the generally applicable performance criteria such as building height, DCP 2 contains, in s 15.0, objectives and performance criteria for various areas that have been the subject of character studies that form part of the DCP. Being of particular relevance to the main issue in this case, the site is situated in the Queens Park Residential Character Study Area ("the character study" and “the study area”).

10 The character study notes that the Queens Park area contains a collection of predominantly 19th-century and early 20th-century architectural styles. It has a village character created through a collage of features and artefacts that are still reflective of the era in which the area was developed. Relevant character elements include vegetation, streetscapes and architectural style.

11 Vegetation is described as being an element of paramount importance to the character of the area. Formal plantings of mature fig trees provide the most distinguished characteristic of the inner residential streets providing a uniting theme throughout the area. A sense of enclosure is created by avenues of mature street trees. In terms of streetscape inner residential streets are characterised by mature trees forming a canopy, foliage, shade, cooler microclimate and wider verges.

12 In dealing with architectural style the study notes that:

A variety of architectural styles are represented in Queens Park and are reflective of the various eras of development in the area. This range from classic Victorian terraces, sandstone Post Regency cottages, Victorian Gothic, Edwardian, and Federation semi detached dwellings to larger Federation, Californian and modern bungalow styles. Most are clustered in groups of similar style which provide a sense of coherency, modulation and rhythm which all contribute to the character of the whole. Rhythm is the key to the character and is presented through repetition of identical building elements such as modulation, shingles gables, chimneys, doors or windows, terraces, entrances, fences, building material or other building details along the streetscape.

A range of recent developments has contributed variety to the vocabulary and style to the character of the area. New dwellings and alterations and additions range from minor dormer windows to ad hoc contemporary architecture.

13 The relevant desired future character objectives for streetscape are:

2.1 To reinforce the existing street categories through the appropriate dwelling facade building setback, fences and landscaping.
2.2 To encourage dwelling styles that integrate with the established front, rear and side streetscapes.
2.4 To promote fencing design which is consistent with the original style of the dwelling and character of the street, while providing for surveillance and promoting a wider ambience for pedestrians.

14 The relevant associated streetscape performance criteria are:

2.1 New development or alterations and additions to existing dwellings should be compatible and consistent with the development in the immediate vicinity and in the overall context of the street.
2.3 Building setbacks, terraces, balconies and rooflines are consistent with the defined street corridor sites to provide uniformity to a group of terraces or mirror and adjacent semi.
2.5 Low fences are desirable, especially where setbacks are close to the street. This provides surveillance to the street, provides a wider ambience for pedestrians, as well as gives a better scale to the building facade.

15 The relevant desired future character objectives for architectural style are:

4.1 To reinforce the various established architectural styles of dwellings to sensitive alterations and additions and appropriate new developments.
4.2 To emphasise balance and symmetry in alterations and additions to semi detached and attached dwellings.
4.3 To reinforce and the existing pitched roofscape as the desirable character of the area and promote consistency in roofing materials.

16 The relevant associated performance criteria for architectural style are:

4.4 New dwelling development is sympathetic to the established architectural style in the vicinity and preserves the area's village character.
4.5 Where terraces and semi detached dwellings sit in a group of identical style, consistent building setbacks, balconies, rooflines and other symmetrical elements are used to provide uniformity to the group.
4.6 Where terrace and semi detached dwellings have a small front setback, facade details and building elements, such as doors and windows, balustrade, mouldings, or tiles are sensitively integrated as a part of the streetscape character.
4.7 Flat roofs are avoided where it detracts from the established roof character of the locality. Uniform roofing materials are to be used where they are visible from the street.

17 The relevant desired future character objectives for colour schemes are:

5.1 To promote building materials and colours which are sensitively integrated to and respect the existing character of the streets.

18 The relevant associated performance criteria for colour schemes are:

5.1 Light and natural base colours are desirable as they contribute to the brighter street atmosphere particularly where dense tree foliage or canopies filter the sun access to the street.
5.2 Exposed brick or sandstone is a desirable material where the material presents and original or coherent theme to the existing building or streetscape.
5.4 Modern high-tech building materials and contemporary dark colours are to be avoided, where they are incompatible with the existing streetscape.
5.5 Contemporary colours and building materials are to be sensitively integrated and respect the existing character of the streets.

19 The application was advertised by the council and some 20 objections were received. Several of the authors of these objections gave oral evidence whilst on site. Matters of concern expressed in those objections include:

• increased traffic congestion especially in Fitzgerald Lane;
• overshadowing, overlooking and loss of privacy;
• excessive height, bulk and scale;
• inappropriate design, character and use of materials;
• non-compliance with council's planning controls;
• inappropriate non-traditional design;
• inappropriate location of garages;
• inappropriate design in close proximity to heritage items;
• anti-social design because of the absence of front windows and the blank facade

20 Included in these objections are letters from the National Trust Australia (New South Wales) (“the National Trust”) and Mr G Karavanas, a town planner of Gary Shiels & Associates Pty Ltd on behalf of the owners of Nos. 75, 77 and 79 Birrell Street. These objections are referred to in more detail later in this judgment.

21 Mr N England, a council town planner, prepared a detailed report that assessed the proposal and made the following observations:

The front facade of each dwelling consists of metal cladding, with no external openings with the exception of the front door and a roof curving to the north. This is quite simply a departure from the established context of the street and inconsistent with the desired future character of Queens Park.

To conclude, it is considered that the modern or avant-garde style of the proposal presents a departure from the desired future character of the Queens Park area, which clearly states a preference for more traditional forms of housing. Notwithstanding the considerable architectural merit of the proposal, it should be clearly recognised that the proposed development does not comply in this regard.

22 He reached the following conclusions:

The proposed development represents a challenging architectural style, which at the same time generally complies with the requirements of council's policy and has been designed in a manner to reasonably address potential adverse impacts.

The principal issue that therefore remains is the merit of the aesthetics of the external design.
After consideration of the site's context in Bourke Street, the adjacent intersection of the Birrell Street and the ad-hoc style of the development in this section of Bourke Street, the proposed development is considered a worthy addition to the streetscape, which will ultimately add value to the general character of the streetscape.
The proposal however could not be supported due to non-compliance with the Queens Park Residential Character Study in DCP No 2.

23 A subsequent report by Mr P Bull, also a council town planner recommended that development consent be granted, having reached the following relevant conclusions:

• The application complies with the bulk and scale requirements of DCP 2 - Dwelling House Development, with the exception of the maximum wall height control.

• The architectural style of the proposed development is contemporary and does not address the Queens Park character study in DCP 2. However, the site is considered an appropriate opportunity for a "stand alone" design and the building is considered to have architectural merit in its own right.

24 Mr Bull's report notes that council's heritage advertiser raised no significant objection to the proposal in relation to the heritage items at Nos. 1 and 2 Fitzgerald Lane.

25 The council inspected the site and subsequently resolved to defer the application to allow mediation to discuss a number of unsatisfactory aspects of the design including streetscape, compliance with DCP requirements and amenity impacts on neighbours. This approach was unsuccessful and the appeal was subsequently lodged on the basis of a deemed refusal.

The evidence

26 In addition to the written and oral evidence provided by the objectors evidence was also provided by Mr J S Kennedy, the Court appointed architectural and urban design consultant. Mr I Moore assisted the Court providing an explanation of several aspects of his design.

27 Following his appointment Mr Kennedy met with the parties and having considered the matter identified a number of items, which he considered should form part of the conditions of consent, should the project be approved by the Court. These changes which involve: front doors and window louvres; boundary walls; and landscaping and tree planting, have now been incorporated into the proposal.

28 In his report Mr Kennedy provides his analysis of the issues in the case. He also took into account the reports of Mr England and Mr Bull and concurred with Mr Bull's recommendation that the application should be approved. This evidence is referred to in more detail later in this judgment.

29 The National Trust in its letter expressed the opinion that this proposal is inappropriate in terms of its scale, bulk, materials, and overall design, making no attempt to relate to the character of the surrounding area. More particularly: the front setbacks are insufficient; the sheer rise of 7.5 m of the front walls without an intervening eave; the design would be unique in this neighbourhood; lightweight materials are in total opposition to the heavyweight construction characteristic of this locality; there is no masonry fence along the street boundary; the "modernist" curved saw-tooth roof is an alien feature; and the view of these roofs south along Bourke Street will be particularly incongruous.

30 Whilst promoting good quality contemporary design in existing residential areas, rather than the reproduction of Federation or Victorian terraces the Trust was of the opinion that in this scheme is wholly inappropriate for the site, as it makes no attempt to relate to the character of the area, the scale of existing buildings or the pattern of the streetscape. As a "stand alone" design it is inappropriate.

31 In his letter Mr Karavanas deals with a number of issues including: the use of inappropriate materials and their reflectivity; excessive building height and insufficient setbacks; and the excessive bulk and scale of the proposal particularly in terms of its unrelieved excessive bulk. He was also concerned that the proposal has an inappropriate design and character taking into account the character of Bourke Street. The site and design of the proposed dwellings have no respect for the existing character or relationship to the adjacent single-storey detached and semi-detached dwellings with pitched roofs resulting in it being totally out of place. He also refers to the absence of any visual connection to the street noting that the dwellings turn their side to the street. Furthermore there is no opportunity for casual street surveillance. These matters result in the proposal being inconsistent with DCP 2.

The issues

32 The applicant and the Court were provided with a statement of issues containing four issues with several sub-issues. In essence these issues relate to: amenity impacts on neighbouring properties; character and streetscape; and impacts on nearby heritage items. Exceedance of the wall height requirement in DCP 2 is also an issue. The heritage issue was not pressed.

33 Whilst direct amenity impacts on neighbouring properties are important, the principal issue in the case is reflected by the conclusions reached by Mr England and Mr Bull, that is, whether the ad hoc style of the external design is acceptable in the light of the non-compliance with the Queens Park Residential Character Study in DCP No. 2 and its failure to address the street.

Mr Kennedy’s evidence

34 Mr Kennedy explained that there is a variety of ages and styles of dwellings from quite different architectural periods in this established locality. Many homes have been subject of significant alterations and additions especially at the rear. This is a partly vacant, remnant site within the Queens Park Character Area and is appropriate for contemporary architecture

35 In this context he recognised that there are a number of design elements which identify this building as being significantly different from surrounding development including the singularity of materials for roof and walls, the lack of street windows, the horizontality of the windows and the lack of decoration. Indeed, in its initial appearance the proposal bears little resemblance to its neighbours. However, a closer examination reveals that these houses take on the fundamental characteristics of terrace or row housing including their width, the common party wall, and the clearly defined front entries.

36 Mr Kennedy believed that the highly credentialed design architect approached the design for this site from first principles and from an understanding of urban infill development. The resulting design has also been modified in response to neighbours concerns and his suggestions, including the use of obscure milk glass front doors.

37 Mr Kennedy acknowledged that the appearance of the proposal from the street would be controversial and its fit within the Queens Park character study would be questioned. The difference between this proposal and other development in the area is the overall shape of the buildings, their materials, the lack of windows and the lack of attached decoration. It is these elements that make the proposal contemporary and in a sense mark its time and place in the same manner as various other styles of architecture in different historical periods. Good architecture will always reflect its time and in doing so will always be somewhat controversial, but the shock of the new is almost always short lived.

38 Mr Kennedy accepted that good urban design is about activation of streets through providing strong relationships and visual connection between buildings and their streets and that this building which has almost no windows or openings to a street would appear contrary to that principal. Whilst not fully accepting it he generally agreed with Mr Moore's explanation that there are windows in the side elevations adjacent to the street to compensate. This together with the glass front doors will assist in the activation of the building’s relationship with the street. The building will therefore not be oppressive or unfriendly in its presentation to Bourke Street. He added that the building is a strong piece of good contemporary architecture and that the lack of windows is reasonable, essentially because:

• This is a relatively small building on an infill site.
• The front facade is strongly modelled.
• The area has traditionally accommodated blank walls.
• The buildings are at the end of the street.
• The street is largely defined by its trees.
• The proposed colour (light bronze) in combination with the corrugated metal cladding and louvres will give the building a gentle and recessive quality.
• There is a bus stop located directly outside would impact on the amenity of the adjacent proposed bedroom.

39 In dealing more particularly with the character study and the recommendations for Queens Park Mr Kennedy acknowledged that on a strict reading some aspects of the development do not comply. In this context he said that the real issue facing this development is:

… whether the DCP can accommodate a truly contemporary building which, whilst taking its form and overall character from its context, and meeting the amenity and other performance criteria for the site, seeks to explore and express current issues of habitation in the architectural language of the day.

40 Mr Kennedy also believed that it is an important question for the ongoing cultural development of our society, which he believed had been appropriately addressed by Mr England in his report by referring to matters such as the highly resolved and responsive contemporary infill within the streetscape; including paired forms and verticality. The proposal is strikingly different to other buildings in the street but the associated visual impact can be likened to the strong contrast between Victorian and Federation housing in the vicinity. Cohesiveness has been achieved through consistency of alignment compatible variations in height and materials.

Planning principle - design

41 Councils and indeed the Court have, in the past, been criticised for restricting the freedom of architectural expression of building designers, including highly credential architects, and perhaps in some instances this criticism is justified. Such restrictions can arise as a result of rejecting a development application for an unusual contemporary design simply because it is different or from a development control plan which has the effect of discouraging or preventing such designs.

42 Its is unreasonable to reject a building design simply because it is different. However a consent authority when dealing with a development application, irrespective of the credentials of the designer, cannot disregard important public interest matters such as the character of the area and streetscape just because the particular design under consideration is said to comprise quality contemporary architecture. Similarly, unreasonable impacts on neighbours cannot be disregarded. This is especially so when these matters are provided for in a development control plan. Also, in dealing with a development application it is not for the Court (or indeed the council) to question a properly prepared and adopted development control plan.

43 Some building designers might find that taking into account matters such as the character of the area, streetscape and impacts on neighbours is difficult or restrictive. However, if these things are dealt with from the beginning as site constraints, much like other constraints such as topography and orientation, any resulting design must, in the public interest, be an improvement over a design, which fails to properly take these things into account.

44 Whilst the private interest of landowners and their designers should be considered it cannot be accepted that this interest should prevail over the public interest.

45 The following principle should be applied:

Good architectural design does not exempt a building from being assessed for its impact on neighbors and its compliance with the objectives and requirements of any relevant local environmental plan and development control plan.

46 In this regard the provisions of DCP 2 of greatest relevance to this application are those (see above) which deal with the character study. Also relevant is objective (b) of the 2(a) zone that requires the maintenance and improvement of the amenity and existing characteristics of this locality that is predominantly characterised by dwelling houses. The impacts on neighbours involve building bulk and appearance, shadows and overlooking.

Findings

47 It is clear that Mr Kennedy has paid particular attention to the architecture of the proposal in its context and recognised the significant differences and the non-compliances with DCP 2. However in my view he has not considered the requirements of the DCP as a fundamental element in the decision making process: Zhang v Canterbury City Council (2001) 115 LGERA 373.

48 Both Mr England and Mr Bull recognised that the proposal has architectural merit but would not be in accordance with DCP 2 and the desired future character of the Queens Park area. They disagreed as to what should be the outcome for this application given the non-compliance.

49 The relevant objectives and performance criteria of DCP 2 involve streetscape, architectural style and colour/materials. The streetscape objective is for new development to have an appropriate dwelling facade with a style that integrates into the existing streetscape and facilitates surveillance of the street. The performance criteria require that the new development be consistent with surrounding development and have consistent rooflines to provide uniformity.

50 The architectural style objective is for new development to reinforce more established architectural styles and existing pitched roofscapes. The associated performance criteria require that development have a coherent plan sympathetic and responsive to existing architectural style including the established roof character. Facade walls need to be sensitively integrated.

51 The colour/materials objective is that new development should utilise colours and materials that sensitively integrate into the existing character of the street. The associated performance criteria indicate that light natural colours and exposed brick or sandstone is desirable, so as to be consistent with original buildings and streetscape. High-tech building materials and contemporary dark colours are to be avoided unless they can be sensitively and respectfully integrated into the existing character.

52 Taking these requirements into account and despite its merits I agree with Mr England’s conclusion that the proposal should not be supported because of its significant non-compliance with them.

53 The proposed building will not have an appropriate front façade with a style that integrates into the streetscape as required by DCP 2 because of its form, materials and fenestration. More particularly, the facade is unlike anything else in the street because of the combination of its stark form and sheer rise of 7.5 m, extreme use of modern metal cladding and the absence of any relieving fenestration in its predominant streetscape elevation. It cannot be said that the façade walls have been sensitively integrated into the streetscape and this is not overcome by the suggested row-house appearance of the building. The roof form also attracts criticism in that it fails to respond to the existing roof character of the streetscape. Here I agree with the Trust that the roofs would be incongruous. The building thus fails to take its form and character from its context as required by DCP 2.

54 Whilst corrugated and ribbed steel would not normally be described as high tech, I agree that the extent to which such materials are used here does not comprise a sensitive and respectful integration into the existing character of Bourke Street. As the Trust said, these lightweight materials are in total opposition to the heavyweight construction characteristic of the locality. This is not to say that such materials should not be used because they are not uncommon in the locality. Instead it is the extent of their use that points to a lack of cohesiveness.

55 I have reached these conclusions despite agreeing that this is a highly resolved building form and that the paired dwelling arrangement is an appropriate response to the site.

56 Whilst the northern orientation of dwellings is to be encouraged I am nevertheless concerned that the dwellings provide insufficient visual connection to the street. The proposed milk glass front doors to are not sufficient to overcome this concern. Whilst they will have some effect at night when associated lights are switched on, this effect will be largely mitigated by their recession into the building. As Mr Karavanas suggested, turning its side to the street, the public main, is inappropriate and does not result in a strong relationship or visual connection to Bourke Street. This is uncharacteristic of this street and is inconsistent with the requirements of DCP 2.

57 Mr Kennedy at first suggested that the absence of front windows in the street elevation could not be seen to represent good urban design because it would avoid the activation of the street by not having a strong relationship and visual connection. He then accepted a number of reasons such as: strong modelling; other blank walls in the area; and the infill site in support of the acceptability of the design. Here I disagree and believe his first impression was the correct one. The reasons he now gives do not mean that there is an activation of the street.

58 This concern is compounded by the fact that there is little opportunity for casual street surveillance from the dwellings. The provision of windows in the side elevation is not sufficient to overcome this. As a matter of principle, in the interest of better community security some surveillance opportunities are to be encouraged.

59 Finally I accept that these dwellings, designed by a highly credentialed architect is, in some ways a design of high-quality, resulting for example from its layout and detailing. I understand it to be of a style recognisable as belonging to this particular architectural practice and I expect that in some other location a design very much like this one could be entirely satisfactory. Whilst, I agree that this site is capable of accommodating a good contemporary building comprising two dwellings, I am not satisfied that this building is responsive to the requirements of DCP 2. In the circumstances objective (b) of the zone, which is to maintain and improve existing characteristics of the locality, has not been met and the application should therefore not be approved.

60 Given my decision that the appeal should be dismissed it is not necessary to deal with the amenity impacts on neighbouring properties in any detail but I do offer the following observations in relation to privacy, overshadowing and the requirements of the DCP in relation to wall height.

Privacy and overshadowing

61 The privacy issue arises from overlooking opportunities from upper level windows and balconies associated with bedrooms and bathrooms.

62 In relation to the windows Mr Kennedy, in taking into account setbacks, sill heights, privacy louvres and the nature of the rooms (i.e. dressing rooms, bathrooms and bedrooms) and the extent of existing intervening structures was able to conclude that any additional loss of privacy would be minimal. He also concurred with the comments of Mr England that given the nature and density of development in this locality some degree of overlooking is part of the character of the area. Mr Kennedy nevertheless recommended a number of further improvements such as the use of obscure glazing and landscaping which have now been incorporated into the design.

63 In relation to overshadowing Mr Kennedy began concurred with the comments of Mr England that the main overshadowing impact resulting from the proposal will be on No. 7 Bourke St. He agreed that No. 7 will nevertheless continue to receive adequate solar access from noon in midwinter. Similarly whilst dwellings on Fitzgerald Lane will also experienced some additional overshadowing in the morning they will nevertheless continue to have adequate solar access.

64 Mr Kennedy also explained that these adjoining properties have enjoyed uninterrupted solar access in the past as a result of a significant part of the subject site having been undeveloped for many years. It is unreasonable to expect that this part of the site should remain undeveloped for the benefit of preserving solar access to adjoining properties.

65 Taking Mr Kennedy's evidence into account and having considered the various aspects overshadowing and privacy whilst on-site, I am satisfied that the associated impacts would not have been such as to conclude that the proposal is unsatisfactory.

66 Concerns were expressed in relation to the size of the balconies because of the extent to which they exceed the maximum area provision in the DCP. Whilst this aspect is not critical to the application, I would expect that another design for this site will show greater respect for this requirement

Maximum wall height

67 There was some argument about the wall height provisions in DCP 2 and how they should be applied to this proposal. Section 3.0 Building Height sets a maximum building height of 9.5 m and a maximum external wall height of 7.5 m. The objectives of these controls include the minimisation of view loss and privacy, the maintenance off solar access to adjoining dwellings and open space and the minimisation visual impacts relating to bulk and scale.

68 The proposal complies with the maximum building height but I agree that the external wall height requirement is exceeded. External wall height is defined as the height measured vertically from natural ground level to the outer face of any wall at the point at which it adjoins the roof form, including parapets. In this instance the roof form can be readily discerned from the street elevation and the cross sections and I accept that the ceiling above level three of the building comprises the under side of the roof form. I do not accept that the upper parts of the north, west and east facing walls can be considered as gable ends or the like and excluded from the definition.

69 The 7.5 m maximum wall height is depicted by a dashed line on the west, north and east elevations, providing an indication of the extent of non-compliance. This non-compliance is not however, in my opinion, a matter of critical concern, as I do not accept that it contributes to any serious overshadowing or loss of privacy. Similarly taking into account that the overall height of the proposal comfortably meets the 9.5 m maximum roof height; I do not accept that the non-compliance is indicative of any excessive bulk and scale.

70 Given the form of the southern part of the building, particularly the manner in which the wall transforms into the roof form it is difficult to determine the extent if any of non-compliance with the wall height. An examination of the cross sections and the southern elevation reveals that at the point where the southerly wall begins its transition into the roof form the wall has a height possibly 500 mm in excess of the standard. Again I do not accept that this exceedence is, by itself, of any determinative significance, particularly taking into account the compliance with the maximum 9.5 m roof height. It does however give some support to the argument that in its presentation to No. 7 Bourke Street the building would have a bulky appearance.

Summary of findings

71 I accept that by itself this building is well designed and its impacts on the amenity of its neighbours are not unreasonable. I nevertheless conclude, because of its failure to respond appropriately to the design and character requirements of DCP 2, that the proposal should not be approved. I also accept that this site could accommodate a contemporary building whilst meeting the requirements of DCP 2. However this proposal does not do this.

72 The orders of the Court are:

1. The appeal is dismissed.
2. Development application No. D 828/03 for the demolition of an existing dwelling and the erection of two attached dwellings at 3-5 Bourke Street, Queens Park, Bronte, is determined by the refusal of development consent.
3. Exhibit C is retained.

______________________

T A Bly
Commissioner of the Court
Rjs/ljr

Appendix “A” - The elevations

East Elevation (Bourke Street)

North Elevation

Appendix “A” – The elevations (cont’d)

South Elevation

73