Ubaldi v Council of the City of Sydney

[2018] NSWLEC 1216

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Ubaldi v Council of the City of Sydney [2018] NSWLEC 1216
Hearing dates:	2 May 2018
Date of orders:	08 May 2018
Decision date:	08 May 2018
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is dismissed. 2. Development Application No. D/2017/361 for the change of use of an existing ground floor commercial tenancy to a residential dwelling, including minor alterations and additions, is refused. 3. The exhibits, other than exhibits 1, A and B, are returned.
Catchwords:	DEVELOPMENT APPLICATION: change of use from ground floor commercial tenancy to a residential dwelling and minor alterations and additions; whether the apartment has an acceptable level of internal amenity; impact on the public domain.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Mr John Ubaldi (Applicant) Council of the City of Sydney (Respondent)
Representation:	D Loether, Bartier Perry Lawyers (Applicant) A Singh, Council of the City of Sydney (Respondent)
File Number(s):	2017/207050
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 refusal of Development Application No. D/2017/361 for the change of use of an existing ground floor commercial tenancy to a residential dwelling, including minor alterations and additions (the proposal) at 1-11 Brodrick Street, Camperdown (the site) by the Council of the City of Sydney (the Council).

2. The appeal was subject to mandatory conciliation on 7 November 2017, 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 28 November 2017, pursuant to s 34(4) of the LEC Act.

Issues

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

• The proposal results in a residential apartment with substandard amenity; because the proposal does not provide any area of private open space; the apartment is not and cannot be naturally cross ventilated; and screening the windows to provide visual privacy will obliterate the outlook from the apartment because it is partially subterranean.

• The proposal has a poor presentation to the street and reduces the street activation.

• The apartment does not have a direct individual entry from the street, the entry is from the recessed lobby and shares a landing with the fire escape and does not have a clearly defined transitional space between public and private areas.

An amended proposal to address Council’s contention regarding flooding

4. Leave was unopposed and granted by the Court at the commencement of the hearing for the applicant to rely on an amended proposal (exhibit B) subject to the applicant’s agreement to pay the respondent’s costs thrown away as a result of the amendment, pursuant to s 8.15(3) of the EPA Act, as agreed or assessed.

5. The amended proposal (exhibit B), which added a flood barrier in the form of a concrete wall 670mm above existing floor level adjacent to the entry to the space and stairs up and over this raised plinth, to create the effect of a bath at the entry to prevent flood water from flowing into the apartment, was intended to address the Council’s contention regarding the potential for flooding. The Council submitted that the proposal would be assessed following the hearing and further submissions would be made as to whether the amended proposal successfully addressed the Council’s contention. The following communication was filed by the respondent’s solicitor with the consent of the applicant’s solicitor on Friday 4 May 2018:

The Respondent’s flooding expert has reviewed the material provided and the report currently provided does not satisfy clause 7.15 of the LEP and is not supported by Council. Council’s expert has provided guidance to the applicant’s expert as to the deficiencies and what may be required. Accordingly, the parties ask that the matter be listed for a telephone callover for the Respondent to explain the flooding issue and to obtain directions regarding the finalisation of this issue.

6. In response to the communication the Registry advised the parties that findings on the contested issues other than flooding would be handed down in a judgment on 8 May 2018.

7. As the amended proposal (exhibit B) did not address the Council’s contention regarding flooding to the Council’s satisfaction, no order is made regarding costs thrown away as a result of the amendment pursuant to s 8.15(3) of the EPA Act.

8. I have proceeded in determining this appeal on the basis that the Council’s contention regarding flooding is capable of being resolved to Council’s satisfaction.

The site and its context

9. The existing commercial tenancy on the ground floor of the mixed use development is approximately 5.5m deep and 15m wide, with windows across the majority of the external façade facing north-west. The façade is located directly adjacent to the street boundary. The commercial tenancy has an indoor floor to ceiling height of 3.2m.

10. The footpath immediately adjacent to the existing external façade falls to the south-west, so that the existing floor level is approximately 1m below the footpath level at the north-eastern end of the space and approximately 250mm below the footpath level at the south-western end of the space.

Background and the proposal

11. Development consent D/2002/665 was granted on 9 April 2003 for alterations and additions to the existing building to provide 24 residential apartments and 1 commercial tenancy and parking for 24 cars. The commercial tenancy is noted as 121m2 and RL20.65 with an entry directly from the footpath at the south-western end of the street elevation (exhibit 2, f 67). The architectural documentation the subject of this consent does not show the internal columns adjacent to the façade.

12. Development consent 2012/1135 was granted on 22 August 2012 for the internal fit out of the ground floor commercial tenancy into four offices and refurbishment of existing bathrooms (exhibit 2, ff 152-163).

13. It was common ground that the metal security grilles over the windows on the ground floor of the commercial tenancy are unauthorised.

14. The proposal is for the use of the existing commercial tenancy as a residential dwelling and the following alterations and additions:

• a flood barrier in the form of a concrete wall 670mm above existing floor level internally adjacent to the front door and stairs up and over this raised plinth;

• removal of the internal doorway to the fire stair;

• new kitchen;

• opening in the existing partition wall between the proposed kitchen/dining and living area;

• metal grilles across 2/3 of the windows and translucent glazing to a height of 1.7m above the footpath level on the exposed glazing, bank of louvres with translucent glazing for ventilation behind the metal grille in each room with a narrow garden between the external wall and the internal hob wall and window coverings running the length of the façade (exhibit B, DA A2.21 rev F wall section).

Planning framework

15. The site is zoned B4 Mixed Use under Sydney Local Environmental Plan 2012 (LEP 2012) and the proposal is permissible with consent. The objectives of the B4 zone are:

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To ensure uses support the viability of centres.

16. The relevant terms of the design excellence clause in LEP 2012 are as follows:

6.21 Design excellence

(1) The objective of this clause is to deliver the highest standard of architectural, urban and landscape design.

(2) This clause applies to development involving the erection of a new building or external alterations to an existing building on land to which this Plan applies.

(3) Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence.

(4) In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters:

(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(d) how the proposed development addresses the following matters:

(i) the suitability of the land for development,

(vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity,

(xii) achieving appropriate interfaces at ground level between the building and the public domain

Expert evidence

17. The applicant relied on the expert planning evidence of Mr Brett Daintry and the Council relied on the expert planning evidence of Mr Thomas Irons.

Consideration

18. The nearby approved development currently under construction at 12 Marsden Street, Camperdown (exhibit 2, tab D) has a frontage to Broderick Street. The part of the approved development fronting Broderick Street includes driveway access to basement parking and a four storey residential flat building, with a central communal entry and residential apartments on either side of the entry, including two residential apartments at ground level.

19. The experts compared the proposal to this approved development, particularly the apartment identified as A0.02 at ground level fronting Brodrick Street (FFL 23.4, exhibit 2, f 183). The experts agreed that the floor level of apartment A0.02 is just below the footpath level at the highest point on the footpath at the eastern end of the northern façade. This apartment has an entry gate directly fronting the footpath which provides an alternative entry to a 2m deep terrace and the living areas of this apartment. This apartment also has a rear terrace leading from the two bedrooms, fronting the communal open space in the centre of the site. In Mr Daintry’s view, the approved development uses similar materials to the proposal and these materials are consistent with the residential character established by the approved development.

20. Dwellings and residential flat buildings use simple architectural cues and devices to create a transition of spaces on a site in order to delineate the public domain from the private interior, consistent with our expectations for residential dwellings. The materials are not necessarily determinative of whether a residential character is achieved. The approved residential flat building development at 12 Marsden Street, Camperdown, including the ground floor apartments fronting both Brodrick and Marsden Streets, read as residential dwellings. Each ground floor apartment has a semi-private transitional space, a terrace, separating the private residential accommodation from the public domain, protected by a front fence and a gate. The residents of these apartments have an outlook onto their own private open space and then beyond above the boundary fence to the public domain.

21. A common device to delineate the private and public domain in developments with private open space fronting a public street or walkway is to raise the floor level of the private open space and internal accommodation above the public domain to create a sense of separation and to enhance privacy. Because of the fall of the terrain across the site of the approved development, the ground floor level at the far eastern end of the site is just below the level of the adjacent footpath, however, on both façades, the ground floor level is above the level of the footpath for the majority of the length of the façade.

22. All of the ground floor apartments of the approved development, except one, have a dual frontage to the interior communal open space, protected by a semi-private transitional space, a terrace, between the private domain and the communal open space. The one ground floor apartment without a dual frontage has a formal internal entry to the apartment from the communal hallway. The dual frontages of apartments in the approved development provide for cross ventilation and an alternative outlook.

23. The internal amenity of the proposal is significantly and unacceptably compromised by the requirement to provide translucent glazing to a height of 1.7m above the footpath in order to provide for privacy within the apartment, leaving a narrow band of transparent glazing at the top of the windows in each room as the only outlook from the apartment. Contrary to the evidence and submissions on behalf of the applicant, this is not commensurate with the outlook from the approved development onto private open space. I do not accept that the layering of window coverings and plantings proposed on the inside of the façade of the proposal provide adequate amenity to compensate for the lack of any outlook from the proposal.

24. I do not accept that the proposal is acceptable by comparison to the approved development at 12 Marsden Street, Camperdown. The proposal is contrary to our expectations of a residential dwelling, because of the significant constraints of the existing commercial tenancy, including the floor level being up to 1m below the footpath, the wall of windows along the external façade to the street, the shallow depth of the internal space without access to an alternative outlook and the inability to create a transition of spaces to protect the privacy and internal amenity of the residential apartment. All of these constraints collectively make the existing commercial tenancy unsuitable for use as a residential dwelling.

25. The entry door to the proposal adjacent to the existing fire exit door provides an abrupt and unexpected delineation between the external lobby of the existing building and the internal private domain of the proposal. This alone would not be, in my view, determinative, however in conjunction with all the constraints of the existing space, it contributes to the unacceptability of the proposal.

26. I am satisfied that the Council’s contention, that the existing space approved as a commercial tenancy is not capable of providing an acceptable level of residential amenity, is made out and is determinative.

Adaptive re-use

27. The proposal was referred to during the hearing as an adaptive re-use project. This proposal is not a proposal for adaptive re-use, it is a proposal for a change of use. Adaptive re-use is more akin to recycling a building and it means adapting a place to suit the existing use or a new use (The Australia ICOMOS Charter for Places of Cultural Significance, 2013). Adaptively re-using a building means coming to terms with the significance of the existing fabric, juggling the constraints and opportunities it presents and using the existing fabric to provide a stimulus for the re-interpretation of the building.

Conclusion

28. The existing commercial tenancy is unsuitable for conversion to a residential apartment, because it is not possible to achieve an adequate level of amenity for the future residents of the residential apartment within the existing space.

Orders

29. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. D/2017/361 for the change of use of an existing ground floor commercial tenancy to a residential dwelling, including minor alterations and additions, is refused.

3. The exhibits, other than exhibits 1, A and B, are returned.

____________

Susan O’Neill

Commissioner of the Court

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Amendments

15 May 2018 - Correction to typographical error at [22]

13 September 2024 - Correction to typographical errors at [17] and [19]

Decision last updated: 13 September 2024