Woollahra Corp Pty Ltd v South Sydney City Council

Case •

[2003] NSWLEC 227

•

12/16/2003

No judgment structure available for this case.

>

Land and Environment Court


of New South Wales


CITATION: Woollahra Corp Pty Ltd v South Sydney City Council [2003] NSWLEC 227
PARTIES:

APPLICANT
Woollahra Corp Pty Ltd

RESPONDENT
South Sydney City Council
FILE NUMBER(S): 10643 of 2003
CORAM: Nott C
KEY ISSUES: Development Application - Development Control Plan :- Proposed conservation of heritage buildings and erection of a new residential flat building and restaraunt - DCP 6 - compatibility of new buildings with existing - amenity impacts - previous decision of Court
LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97(1)
CASES CITED: -
DATES OF HEARING: 21, 22, 25-27 August; 12, 19 September 2003
DATE OF JUDGMENT:
12/16/2003
LEGAL REPRESENTATIVES:

APPLICANT
Mr S Austin QC and
(on 4th and 5th hearing days) Mr D Officer QC,
with Mr S Balafoutis (barrister)
SOLICITORS
Gwynne Thompson

RESPONDENT
Mr S Griffiths (solicitor)
SOLICITORS
Pike Pike & Fenwick


JUDGMENT:

    Contents
    Existing heritage buildings and proposal development
    Issues
    Evidence
    Planning controls; status of the DCP 6
    Previous development consent of the Court
    Comparison of approved development with current proposal
    Relevance of economic considerations
    Proposed restaurant in front of the old manse
    New residential flat building; impacts on existing terraces
        External impacts
        Design quality and internal amenity of proposed units
    Other matters
        Incorporate Regent Street Park?
        Location of substation
        Finished levels next to the church; disabled access
        Carparking spaces near the new manse
        Generally
    Orders

    IN THE LAND AND
    ENVIRONMENT COURT
    OF NEW SOUTH WALES
    10643 of 2003

    Nott C

    12 December 2003

    Woollahra Corp Pty Ltd
    Applicant
    v

    South Sydney City Council
    Respondent

    Reasons for Judgment

    Existing heritage buildings and proposed development

    1. This is an appeal against the council’s deemed refusal of a development application relating to the former St John’s Presbyterian Church site at 261Oxford St, Paddington. The Uniting Church in Australia Property Trust (NSW), who is the current owner of the site, no longer has a use for it and has entered into an agreement for its sale to the applicant.

    2. There are four heritage buildings on the site: the church, the hall, the old manse and the new manse. These heritage buildings are presently vacant and have not been used for church purposes for a number of years. The buildings have deteriorated and are in need of extensive repair, restoration or conservation work. For the purpose of this appeal, it is convenient to refer to these buildings by their former descriptions. For example, when I refer to the “church”, I mean the building that was formerly used as a church for religious services and is now intended to be adapted for other uses.

    3. As described in more detail by the heritage experts who gave evidence, the church is a Victorian Gothic style sandstone building originally completed in 1859, the foundation stone having been laid in 1855. It was altered and extended in 1886 by the addition of the hall attached to the rear of the church and by the replacement of the old overhanging eaves with stone parapets and box gutters. By 1894, the original stone front entry porch, in the centre of the Oxford Street façade of the church, had been extended by the additions of two rendered brick vestries. Subsequent alterations were made to the interior of the church, and alterations were made to the hall. The church is the only extant church building dating from the mid-nineteenth century in Paddington.

    4. The proposed changes to the church include the replacement of the rendered-brick vestries either side of the main entry to the building with glazed showcases for the intended use of the building for retail purposes. Within the rear part of the church and set back from the interior face of the existing walls, a basement floor (containing ancillary plant rooms, tea room, store, lift and stairs) will be provided by excavation. The ground-floor level of the church, and a mezzanine above part of the ground floor, are to be used for retail purposes. The mezzanine will not extend over the whole width of the ground floor but will be detached and set back from each of the existing sidewalls of the church.

    5. In relation to the hall (attached to the rear of the church), a rear small addition to the hall will be demolished, and the hall will be altered to provide two of the proposed residential units, namely units 2 and 3. There will be four levels in each of these units. At the lowest level of these units (the plaza level), there is a proposed “cinema room”; on level 1, two bedrooms, a laundry and so-called terrace; on level 2, the main bedroom, en suite and terrace; on level 3, kitchen, dining and lounge rooms and a terrace. Half of the existing slate roof of the hall that faces towards Oxford Street (up to the existing central ridge) will be retained, but the rear half of the existing roof will be demolished and a new roof constructed, in order to accommodate the uppermost living areas of the two units.

    6. The old manse is a separate two-storey Colonial Georgian style building on the western side of the subject land facing Oxford St. It was originally erected in about 1845 as a schoolhouse. It was the first denominational school established in Paddington, and is now (albeit altered and extended) the only such Colonial-period school building of this date extant in Paddington and probably in southeast Sydney. Before the completion of the church, the old manse was also used for religious services on a Sunday by the Presbyterian Church. The original configuration of the building was as a simple two-storey massing with gable end walls. Subsequently the old manse was extended at the rear. Records indicate that in 1886 the old manse was repaired to enable the building to be used as the residence of Rev. Gilchrist. By the 1890s, the old manse was fitted with a two-storey bull-nose cast-iron veranda at the front, with the veranda wrapping around along part of the sidewalls. The veranda has since been removed. Most recently, the building was severely damaged by fire, particularly at the upper storey. There has been some reconstruction of the roof and internally, and several windows are missing. Historically, the old manse has always had a front yard extending to the Oxford St alignment or re-alignment.

    7. It is proposed to carry out alterations to the old manse , to use the ground floor for retail purposes or as a restaurant, and to provide commercial office space at the upper level. At the front upper storey of the old manse it is proposed to add a steel-framed veranda.

    8. A new single-storey restaurant building, having a zinc roof and glazed wall panels, is proposed to be erected. This restaurant building will fill most of the presently open forecourt of the old manse and will extend beyond the forecourt towards the western side of the church near Oxford St. It is first proposed to excavate this part of the site in order to provide a basement area containing a large kitchen and service area for the proposed restaurant above it at ground level. The basement covers a much larger area immediately beneath the finished surface level of the forecourt than the area covered by the roofed section of the proposed restaurant.

    9. A new residential flat building , facing south towards Renny Lane, with underground parking will be erected. This new building will be behind the old manse and will be separated by 5 m from the proposed two units in the hall. At basement levels 1 and 2 of the new residential flat building, there will be 22 car spaces, including two spaces for visitors to the units, all having vehicular access from Renny Lane at the rear of the subject site. Above the carparking levels, there will be four residential levels (being Renny Lane level, plaza level, and levels 1 and 2). In this building, there will be 10 units. Units 11 and 12 are on one level, while the other units extend over two or more levels.

    10. Looking at the proposed units 4 to 13 of the new residential flat building from Renny Lane, the units would be distributed over the different floors of the building as set out in the following table (the right-hand side of the table is the eastern end of the building):
      Level 2
      13
      10
      8
      6
      4
      Level 1
      13
      10
      8
      6
      4
      Plaza level
      12
      9
      7
      5
      4
      Renny Lane level
      11
      9
      7
      5
      4
      Basement 1
      carparking
      Basement 2
      carparking


    11. The existing new manse, erected in about 1904, is a two-storey brick and rendered Federation Arts and Crafts style house, located near the south-eastern corner of the site. It is proposed to retain this building for use as a single dwelling-house, to renovate it and to carry out some alterations, particularly to the western side of the building. Between the eastern façade of the new manse and Regent Street Park, a hard-standing area is proposed for two carparking spaces with access from Renny Lane. The house (shown as dwelling “1” on the plans) would have its own curtilage fenced off from the rest of the buildings on the site. Along the boundary to the park, a palisade fence with sandstone base would be provided.

    12. During the hearing, various sheets of the architectural drawings of the proposed development were amended with the agreement of the council. The final architectural plans for which consent is sought are the plans of Ancher Mortock Woolley project no. 0213, drawing nos. (with the prefix DA-) 01B, 03B, 04B, 05B, 06C, 07C, 08C, 09C, 10B, 11B, 12C, 13B, 14C, 15B (contained in exhibits A and AH).

    Issues

    13. This appeal was lodged on 4 June 2003 against the council's deemed refusal of the application. Subsequently, in a lengthy report to the council, Ms R Holten, senior statutory planner, and Mr J Lidis, executive manager – assessments, recommended that the development application be refused, giving 18 reasons for refusal (see ex 7 pp 105-138). On 6 August 2003 the council adopted the recommendation and the reasons for refusal.

    14. The main issues at the hearing were:
        • non-compliances with DCP 6, particularly in relation to the proposed restaurant in the open forecourt of the old manse;
        • the impacts of overlooking, overshadowing and bulk from the proposed residential flat building, affecting the rear of terraces adjoining Renny Lane;
        • whether the proposed residential flat building would be of high-quality design with good internal amenity for the future occupants, taking into account State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Development (SEPP 65);
        • whether a conservation plan should be prepared before any development consent is granted and be part of that consent;
        • adequacy of the proposed landscaping.

    Other issues are as set out in the filed statement of issues, which is quoted in full in the report of Mr G Shiels (ex L, pp 18-21).

    Evidence

    15. The applicant’s evidence included oral or written evidence from: Mr G Shiels, town planner and urban designer; Mr G Brooks and Mr B Edgar, heritage consultants; Messrs K Woolley and D Swan, chartered architects; Mr V Sitta, landscape architect; Mr W Home, arborist; Mr T Howells, architectural heritage consultant.

    16. The council’s evidence included oral or written evidence from: Mr I Stapleton, heritage architect; Mr P Castor, tree-care consultant; Mr C Hallam, traffic engineer; Ms K Gordon, town planner; Mr C Betteridge, heritage and landscape consultant; Mr N R Dickson, architect and urban designer. There were also written or oral objections (ex 7) from 20 local residents, from Ms C Moore MP and from The Paddington Society Inc.

    Planning controls; status of the DCP 6

    17. The subject site is zoned Mixed Use 10 under South Sydney Local Environmental Plan 1998 , and the proposed development is permissible with consent. The site also falls within conservation area 38 and the site is listed as a heritage item. The following clauses of the LEP are relevant to the assessment of this application: cl 10 (development to be consistent with zone objectives); cl 21 (objectives of zone 10); cl 22-27 (heritage controls).

    18. Also relevant is South Sydney Development Control Plan 1997: Urban Design (DCP 1997) , under which the site is identified as being within the mixed use urban village centres area and within an identified shopping street. This DCP has to be read with other relevant DCPs, including:
        • Development Control Plan No 11 – Transport Guidelines for Development, and
        • Sydney (Heritage Conservation) Development Control Plan 1998.


    19. During a short adjournment of the proceedings, at the request of the parties I referred for determination by a judge questions of law concerning the status of South Sydney Development Control Plan No 6 ( DCP 6 ). Her Honour Pain J held that even though LEP 1998 had not been made when DCP 6 was adopted by the council in 1992, DCP 6 continued to apply to the subject land and is required to be considered under s 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 .

    20. The parties agreed that where there was any inconsistency between DCP 1997 and DCP 6, then DCP 6 should prevail. DCP 6 is a site-specific plan, applying only to the subject land. In the circumstances, therefore, I propose to give considerable weight to DCP 6.

    21. The proposed residential flat building also has to be considered under State Environmental Planning Policy No 6 5 -- Design Quality of Residential Flat Development (SEPP 65). Among other things, cl 2(2) of SEPP 65 says that the policy aims to improve the design quality of residential flat development in NSW and to maximise amenity for the benefit of the development’s future occupants and the wider community. SEPP 65 is particularly relevant to the internal amenity of the proposed units.

    Previous development consent of the Court

    22. As a circumstance of the case, it is relevant to take into account that there is a current development consent dated 9 August 2001 for partial demolition and for alterations and additions to the church and hall for retail and restaurant uses, conversion of the old manse for retail use, excavation of the forecourt to the old manse for the provision of a restaurant and an open-air 50-seat cafe at ground level, conversion of the new manse into two flats, and the erection at the rear of the site of two residential flat buildings containing six dwellings over a level of car parking. That consent was granted by this Court, constituted by Senior Commissioner Jensen and Commissioner Bly, in Uniting Church Australia Property Trust (NSW) v South Sydney City Council, Appeal No 10971 of 2000 (“the previous appeal”).

    23. In the reasons for judgment in the previous appeal, the Court expressed the following conclusions:
        Conclusions

        69. As the foregoing material has revealed, in relation to a number of issues, we have reached conclusions favourable to the Applicant. However, is appropriate to make some general comments in relation to the project as a whole, given its unusual complexion involving adaptive reuse of historically significant buildings in the Paddington Conservation area.

        70. As a review of the evidence has demonstrated, the Council at an earlier stage expended considerable efforts to create a special development control plan (DCP) directed at preserving heritage items on the site. This must be seen as casting a particular emphasis on what is appropriate for the remaining part of the site, seen as available for development. In this regard, achieving a sympathetic relationship between new and old building[s] seems to us to be of the first priority, consistent with the notion that such new development is the source of funds with which to achieve the preservation and adaptive reuse of such old and valuable buildings.

        71. However, it is also noteworthy that the development site is closely related to a hinterland of residential accommodation facing across the rear service lane. This housing also involves historical aspects being from the Victorian era and also located in a conservation zone.

        72. As the view with the parties demonstrated, the proximity of the rear parts of houses facing towards Renny Lane, with their frontages addressing Renny Street, establish a relationship which requires careful consideration. Although well set back from the edge of Renny Lane, the rising nature of the ground towards the north mean that the impact of new buildings on the far side of the lane has a potential to generate a significant visual and physical impact on these houses. In this regard, during the course of the proceedings, the Applicant sought to amend the plans to lower the ridge line of new residential flats proposed, to reduce this potentially adverse impact. In our opinion, this reduction in height by a metre, which was not opposed by the Council, was a useful improvement to a project that, in almost all other respects, we saw as a reasonable and appropriate response to the Council’s development control plan for this site.

        73. Apart from the physical relationship of new buildings on the site to the existing heritage items and to the existing houses to the south, the other critical issue[s] for this site are the urban design consequences of any proposal for its use. In particular, the impact of the proposal on the Paddington shopping street is seen as quite critical, given its conservation status.

        74. Again during the course of the proceedings, minor revisions to building elements located on the northern frontage of the project produced subtle but important improvements to an already acceptable development. In this regard, we are satisfied that as proposed in the drawing contained in Exhibit S, a generally satisfactory relationship to the immediately adjoining historic buildings on the site has been achieved. However, just as importantly, the relationship to the historic linear shopping centre is also satisfactory. Further, it has been supported by experts with a particular knowledge and sensitivity to the appropriate form of development for Paddington.

        73. There can be little doubt that adaptive reuse of historically important building represents one of the more difficult tasks to be undertaken by an architect and urban planner. Subtlety of design is required and in the instant case, the relationship to existing houses, also of a historic nature add a particular form of difficulty requiring sensitive responses. We are satisfied that such a response has been achieved and the project as finally presented to the Court is worthy of support and approval.

    24. Accordingly, the Court in the previous appeal made the following orders:


        Orders

        1. The appeal be upheld.
        2. Development consent is granted for: -
          (i) the restoration and modification of the church and church hall and the old manse including basement extensions for restaurant, kiosk and retail purposes,
          (ii) the restoration and extension of the new manse as a dwelling,
          (iii) the erection of a new residential flat building with basement carparking,
          (iv) the subdivision of the site into three lots,
          at 261 - 263 Oxford Street, Paddington, as described in the drawings contained in Exhibit S as amended by Exhibits U and Y and prepared by Greg Anderson, Designer.
        3. The consent shall be subject to the conditions as annexed.
        4. Exhibits S, U and Y are retained.


    Comparison of approved development with current proposal

    25. When considering whether to grant development consent for the present development application, it is a relevant circumstance of the case that the consent dated 9 August 2001 is still current and could be implemented. It is therefore appropriate to make a comparison of the Court-approved development with the presently proposed development.

    26. In respect of the consent dated 9 August 2001, it is important to identify precisely the plans that were approved. During the initial stages of the current appeal, the applicant mistakenly based its evidence (in relation to overshadowing from the approved development) on a set of plans that were not the plans ultimately approved by the Court. In condition 9 of the conditions annexed to the consent of 9 August 2001, it was stated that “development shall be generally in accordance with plans numbered 01A-10A prepared by Greg Anderson dated May 2001…” . However, order 2 of the Court’s orders (par [24.] above) expressly grants development consent for the development “described in drawings contained in Exhibit S as amended by Exhibits U and Y” , which are later sets of drawings that evolved from the drawings in condition 9. The plans in exhibit S are the amended plans of Greg Anderson, sheets 01B, 02A and 03B to 10B. Moreover, the amended plans in exhibit S were further amended in certain respects by the plans in the exhibits U and Y, as stated in the Court’s order. Fortunately, these exhibits had been retained on the Court’s file in the previous appeal, and they were then tended in the present appeal and given identical exhibit letters S, U and Y. As a matter of interpretation, the parties agreed that the plans approved by the consent of 9 August 2001 were those in exhibit S as amended by exhibits U and Y, rather than the plans contained in condition 9.

    27. Significantly, the first sheet of the plans in exhibit Y, namely SK 01, shows hand-drawn amendments to the south elevation of the Court-approved residential flat buildings. The Court lowered the ridge heights of the buildings by 1 m and also reduced the heights of the parapets and of the floor levels. The second sheet (SK 02) of exhibit S is a floor plan with amended RLs of the floor levels, corresponding to the handwritten RLs seen on SK 01. The lowered heights shown on the south elevation were particularly referred to in the Court’s judgment at pars 37, 39, 42, 47 and 72. A copy of the approved elevation SK 01 of exhibit Y is reproduced at [63.] below.

    28. Like the present case, the previous appeal included some development in front of the old manse, and the erection of residential flat units at the rear part of the site. However, as will be seen in more detail later, what was approved by the Court was, overall, a less intense development than now proposed. Although the implementation of the consent dated 9 August 2001 would result in a development that departs in certain respects from DCP 6, the proposed development would result in greater departures.

    Relevance of economic considerations

    29. Mr Brooks stated that after the applicant entered into an agreement with the Uniting Church to purchase the site, a professional team was engaged to review the Court's consent of 9 August 2001 and to advise on any improvements that might be made to achieve an enhanced outcome in both conservation and development terms. In the opinion of the applicant's advisers, the Court-approved development did not achieve the full potential of the site, particularly in the configuration and arrangement of the new residential accommodation of the rear of the site and in respect of the new elements in the front of the old manse facing Oxford Street.

    30. As indicated at par 70 of the judgment in the previous appeal, quoted at [23.] above, DCP 6 was a special plan that aims to preserve the heritage buildings on the site. The plan does allow new buildings to be erected, but significant parts of the site are to be kept free of new buildings.

    31. In respect of appropriately located new buildings, some of the guidelines for development in DCP 6 are more liberal than the controls in DCP 1997 that would otherwise apply. So in that sense it could be said DCP 6 implicitly recognises the fact that the sale or lease of the new buildings would provide an extra source of funds that would at least partially compensate or reimburse the developer for the moneys outlaid to achieve the preservation and adaptive reuse of the heritage buildings. The existing buildings themselves, once restored, would also provide a source of funds.

    32. However, the over-arching considerations in the assessment of the development application are the provisions and intent of DCP 6 (with its already inbuilt development incentives), as well as good conservation practice. Moreover, besides achieving a sympathetic relationship between the new development and the existing buildings, the new residential development should be of good design in itself and desirably should maximise residential amenity for the future occupants, and should relate well to development on adjoining properties. Such considerations as these should not be unduly compromised in order to achieve an increased economic return.

    33. It could probably be assumed that the Court’s consent of 9 August 2001, which runs with the land, has added to the value of the property. It may also be assumed that the consent provides a basis for developing the property and conserving the heritage buildings. It was not submitted that the subject property could not be developed in accordance with the consent of 9 August 2001, and, in any event the Court was not presented with evidence of economic feasibility. Moreover, it has been held that the financial circumstances of a particular developer are generally not relevant. It is not necessary to consider, for example, whether the purchase price for the subject property that the applicant has agreed to pay (under a put-and-call option) is excessive or not.

    Proposed restaurant in front of the old manse

    34. On the one hand, Mr Woolley was of the opinion that the proposed restaurant in front of the old manse would provide a more dynamic view of the old manse than what was approved by the Court. He said that the old manse was undistinguished architecturally with no aesthetic appeal but it was important historically. In the light of his evidence and the evidence of the other experts retained for the applicant, it was submitted that the provision of the restaurant would attract people to come into the site, where they would be able to view the old manse and its relationship to the church. And there would still be a view of the old manse from certain places in Oxford Street.

    35. On the other hand, the evidence of the council's experts as well as the evidence of many residents was to the effect that there should be no development in the area of the forecourt of the old manse. In their opinion, the proposed development was less acceptable from a visual point of view than the Court-approved development. The proposed development would also have more adverse amenity impacts, being noise from patrons and problems relating to on-street carparking at night.

    36. I have previously referred to some of the history relating to the old manse (par [6.]). And in assessing the competing views of the parties about whether it is appropriate to approve the proposed restaurant, a very useful document upon which I rely is the 113-page report St John’s Church, Old Manse And New Manse, Oxford Street Paddington: Conservation Analysis dated March 1992 by Clive Lucas, Stapleton & Partners Pty Ltd. In fact, the author of this report was Mr I Stapleton, who gave evidence in this appeal for the council. However, it is to be noted from the title page of the report that it was prepared not for the council, but for the Eastside Parish Uniting Church in Australia.

    37. Included in this 1992 report is a photograph taken in about 1905 of the front of the church and of the open garden in front of the old manse:

    In the foreground of the photograph is the Oxford Street frontage. As the caption to the photograph says, Oxford Street has been realigned, so that there is now less setback of the church and of the old manse from Oxford Street. (The street on the left-hand side of the photograph is part of Regent Street, which is now closed off and which I have referred to as the Regent Street Park.)

    38. Because of the road-widening of Oxford Street, the front doors of the church are now about 7 m from the street alignment. However, the old manse still has a significant setback from the front boundary of 20 m. If the proposed restaurant is approved, the flat roofs of the restaurant will cover a relatively large area of about 165 sq m in front of the old manse. The roofs will extend eastward from the western boundary of the site (the right-hand edge of the above photograph) beyond the line of the eastern side of the old manse towards the church. At the street frontage, the roofs of the restaurant (including the plaza service area adjoining the western boundary) measure 14.7 m in width. However, as the architectural plans show, the restaurant roofing (which would otherwise be rectangular in shape) is truncated towards the rear southern section in a stepped fashion, to allow an oblique view from Oxford Street past the front of the church towards the front and eastern side of the old manse.

    39. In passing, I note that the two-storey veranda seen in the photograph, which was added in about 1887 after the old manse was originally constructed, no longer exists. In the Court-approved development it was proposed to reinstate the veranda. In the present proposal, a larger veranda at the front was proposed at the upper level but this veranda does not extend around the sides of the old manse, as did the veranda in the photograph. If it were appropriate to grant consent, the council requested that a condition be imposed requiring the building to be reconstructed externally with a veranda similar to the one that was added in 1887. The applicant agreed to this condition. The alternative approach, as suggested by the Paddington Society, would be to have no balcony at all on the old manse.

    40. Among the conclusions in Mr Stapleton’s report of 1992 were the following:

        6.1.3 The historical relationship between the Old Manse and St John’s Church and Oxford Street should not be altered or concealed.

        6.1.7 New buildings and other unavoidable intervention at the place should occur in areas of less significance in preference to areas of higher significance (see fig. 4c).


    41. Of all buildings on the subject site, Mr Stapleton gave the highest significance ranking (“1”) for buildings to the front portion of the old manse. The church was given the second-highest ranking of significance (“2”), except for two small later-added vestries (ranked “6”).

    42. As regards the development potential of the site , it can be seen from Mr Stapleton’s figure 4c (p 47 of the 1992 report) that the least significant part of the site is at the rear of the old manse and behind the hall. The most significant part of the site, which was the only part to achieve a significance ranking of “1”, was that part of the site between the front of the old manse and Oxford Street. The next most significant part of the site is between the front of the church and Oxford Street.

    43. Applying these rankings given by Mr Stapleton, it is apparent that it would be appropriate to allow a suitable form of residential flat building or buildings on the least significant, rear part of the site facing Renny Lane. However, it is equally apparent that the most significant part of the site is in front of the old manse, where the preferred approach is that there be no buildings or structures intervening between Oxford Street and the old manse or affecting the relationship of the old manse to the church.

    44. This well-documented approach of Mr Stapleton was reflected in the adoption by the council in 1992 of the site-specific development control plan, DCP 6.

    45. DCP 6 includes five maps, the most important of which in relation to the proposed restaurant is Map 2: Heritage Items & Development Sites , a copy of which is reproduced here:

    46. Map 2 of DCP 6 shows that there are no potential development sites in front of the old manse or in front of the church or between the eastern side of the old manse and the western side of the church. The potential development sites are only at the rear of the church and behind the old manse. It was suggested on behalf of the applicant that there need only be a limited view of the old manse and the church from Oxford Street having regard to map 4, which contains a notation and arrows indicating sight lines from only one point on Oxford Street. However, in the context of the other maps of the DCP, and having regard to the notation itself on a map 4 that reads “External views to old manse to be maintained” , I am of the opinion that it was not envisaged that any new buildings would be erected in front of the old manse or church or between these two heritage buildings.

    47. One of the aims and objectives of DCP 6 stated in clause 4 is “to protect and enhance the character” of the existing heritage items (i.e. the church, hall, old manse and new manse). Relevant objectives in clause 5.5 in relation to “Building Design” include:

        To ensure the association of the former St John's Church complex with the development of nineteenth century Paddington not be obscured but interpreted for the public benefit.

        To ensure the historic relationship between the old manse and St John's Church and Oxford Street is not altered or concealed.

        To ensure that any new buildings and other unavoidable intervention on the site occur in areas of less conservation significance as identified in the Conservation Analysis (Section 5.3) prepared by Clive Lucas Stapleton & Partners (1992) .

    48. In my opinion, the proposed restaurant clearly does not protect and enhance the character of the old manse and the church. An important component of the character of these buildings (once restored) would be their open-space setting and their setback from Oxford Street with no intervening buildings. The historic relationship of these heritage buildings to Oxford Street would be markedly altered by the proposed structural elements of the restaurant. The old manse would lose what could be a garden setting, which would be replaced by extensive paved areas both within and outside the footprint of the restaurant.

    49. The artist’s perspective (panel 2 of ex X) gives a view of the proposed development from the north-east on the opposite side of Oxford Street. From this perspective, what can be seen across the traffic is the front of the church, part of the eastern sidewall of the old manse and the whole of the front wall of the old manse, the proposed restaurant structures, and the former Commonwealth bank building on the adjoining site to the west.

    50. Mr Dickson was critical of the depiction in this perspective. He said that the amount of glass-wall panelling of the restaurant that is shown in the artist's representation would be inadequate to fully enclose the whole of the restaurant on the site. I tend to agree with his opinion. In addition, when the multiple glass panels were concertinaed together, a view through the panels would be inhibited.

    51. Perhaps the most important view would be as seen by a pedestrian walking along the footpath immediately adjoining the subject site on the southern side of Oxford Street. Proceeding eastward, as the pedestrian passed the north-western corner of the subject site, the old manse and the church could be seen, if there was no restaurant erected in the forecourt of the old manse. The roof of the presently proposed restaurant would prevent a view towards the upper floor of the old manse.

    52. If the glazed panels of the proposed restaurant were fully extended (because of inclement weather or for some other reason), the view towards the old manse would be diminished because of reflections on the panels, from the point of view of a pedestrian on the footpath. The plan DA-12B of the Oxford Street elevation also shows a sliding glazed entry door and fixed glass panels at the front of the restaurant. However, as was submitted on behalf of the applicant, persons within the restaurant, being closer to the old manse, would have a good view of it.

    53. From the viewpoint of a pedestrian walking west along the adjoining footpath in Oxford Street, there would be a cone of vision between the church and the restaurant towards the old manse. However, as a person walked a little further west, 3 m west of the prolongation of the western wall of the church, the front of the old manse would be obscured by the concertinaed glass walling and support posts of the restaurant. (However, a redesign of the location of the panels as per the plan ex Z would cause less interruption to the view.)

    54. In the Court-approved development, there would be a greater openness in the area directly in front of the old manse, because the service kiosk for the approved cafe would be in a narrow building only 2.5 m wide, abutting the common boundary with the bank building. The walls and roof of this narrow kiosk were required to be of glass. In accordance with the approved development, there would be only outdoor seating directly in front of the old manse. Moreover, condition 19 of the consent stated:
        That there is to be no shading or weather protection devices installed for the seating and tables in the proposed cafe in the forecourt of the Old Manse other than removable individual table umbrellas .


    55. The approved plans also provide for an enclosed stairway, leading down to the underground kitchen. The walls and roof of this stairway enclosure are shown to be of glass. Attached to the rear of this enclosure, the approved plans also show a (non-glazed) enclosure for 12 sulo bins and for a small lift from the underground storage room. The width of these access and storage enclosures (east-west) is 1.8 m, and the combined light of these enclosure is 12.5 m. These enclosed structures, which are located to the east of the prolongation of the eastern wall of the old manse, would not interrupt a direct view to the old manse between these structures and the other narrow structure on the western boundary of the site.

    56. In the previous appeal (at par [31] of the judgment), the Commissioners had expressed the opinion (in respect of both the residential flat buildings at Renny Lane and the forecourt structures near Oxford Street) that “the proposal is essentially in accordance with map 2 of DCP No 6” . I have considered in some detail above the study that preceded DCP 6, as well as map 2 and the written provisions of DCP 6. In the light of that consideration, I have come to a different conclusion. It seems to me that the approved western structure, particularly the enclosure for the bins, would be an unfortunate addition near the forecourt of the old manse. In the present appeal, witnesses for the applicant were also critical of this western approved structure, as the structure would prevent an oblique view for a person on the footpath outside the front of the church who is looking towards the ground floor of the old manse. Nevertheless, as I indicated, for persons on the footpath looking more or less perpendicularly towards the front of the old manse, there would be an uninterrupted view of the whole of the front façade.

    57. In the present appeal, the applicant in effect used the previously approved structures (which are not yet erected) in the forecourt of the old manse as a stepping stone towards seeking approval for the proposed restaurant.

    58. However, I am of the opinion that the proposed restaurant would, overall, probably detract more from the significance of the heritage buildings and their setting than what was previously approved.

    59. Apart from the size and location of the above-ground structures for the proposed restaurant, the proposed below-ground large kitchen, storage and amenities block for the proposed restaurant, which extend well beyond the footprint of the above-ground structures, would affect the ability to carry out soft landscaping in the area of the site between the old manse and Oxford Street and between the western side boundary and the eastern side of the church. See plan DA-05B and plan ex F. The sewer-pump room and grease-trap room for this underground kitchen also extend behind the front alignment of the old manse down the western boundary and require the removal of a cheese tree ( Glochidion ferdinandi) identified in DCP 6 as being retained. According to the applicant's arborist Mr W Home, this tree is in good condition; it has grown to a height well above the roof of the old manse. It is apparent that the canopy of the tree could be trimmed so as not to rub against the walls of the old manse. In the Court's consent of 9 August 2001, this tree was required to be retained (condition 64).

    60. The applicant’s landscape plans (exhibits E, P and AF) show no landscaping other than hard-paving on the site between Oxford Street and the front facades of the church and old manse. In any event, there would be a large area where soft landscaping would not be possible because of the large basement to the proposed restaurant.

    61. The approved development would retain more of the front of the site available for deep-soil landscaping, because the approved above-ground and below-ground structures are less than what is presently proposed. It is not necessary for me to interpret the consent of 9 August 2001 as to precisely what landscaping was required (see conditions 9, 41, 60-70 and 96-98).

    New residential flat building; impacts on existing terraces

    External impacts

    62. One of the submissions on behalf of the applicant was that the proposed residential flat building facing Renny Lane was no different from the Court-approved development because it occupied the same building envelope. However, this submission tends to gloss over certain important differences. The differences are most apparent if one compares the elevation plans of the approved and proposed developments.

    63. I reproduce below the Court-approved Renny Lane elevation of the residential flats (with the hand-drawn amendments), SK 01 of exhibit Y:

    64. I have previously referred at [27.] to the importance of the lowered heights of the Court-approved residential flat buildings facing Renny Lane.

    65. The model (ex C) is misleading in its representation of the approved residential flat buildings. The model shows the ridge of those buildings as being higher than the ridge of the hall. However, the Court-approved buildings, having ridges at RL 75.35 and RL 76.15, are lower than the ridge of the hall at RL 77.36. Moreover, this model shows the buildings in crude block form (without any of the actual modulation that is seen in the approved plans), thus giving a false impression of blandness or bulk.

    66. The Court-approved plans for the residential flats show what would appear to be two distinct buildings above natural ground level as viewed from Renny Lane. Although the buildings are actually attached at level 1, the part attaching the buildings is set back 4 m from the main front alignment of the western building. At levels 2 and 3, there is an open walkway or lobby connecting the two buildings, leading from the circular lift tower. This tower is a built form that is connected to but still distinct from the two buildings. The plans do not have a dimension of the width of each building. However, as scaled from plan 06B (part of ex S) at 1:100, each building is approximately 12.7 m wide. There is a gap of 2.5 m separating the gable ends of the upper or attic floors of these two approved buildings.

    67. I have also decribed at [9.] and [10.] aspects of the currently proposed residential flat building, containing ten units. The following plan is a reduced copy of the proposed southern elevation:

    68. Taking the westernmost approved residential flat building and comparing it with the western part of the proposed building, the ridge of each building is at the same height, RL 75.35. The approved ridge at its westernmost point is about 13.2 m from the lane, while the proposed roof appears to be almost flat, having a pitch of 6.6 degrees sloping up to its highest point on the northern elevation. A significant difference between the two developments is that the top of the parapet of the approved westernmost balcony is RL 72.4 (with the upper habitable area being an attic set back about 4 m behind this parapet in a pitched roof), whereas the eaves of the western part of the proposed development are at RL 74.45, which is 2.05 m higher. The eastern part of the approved building has a parapet that is between 1.75 m and 1.55 m lower than the eaves of the proposed building.

    69. A comparison of the approved and proposed elevations indicates that the approved residential flats appear to be contained in two distinct buildings (although partly attached), each approved building appearing to contain two terrace houses having two-storeys plus an attic (although in actual fact the two approved buildings contain a total of six dwellings).

    70. In contrast, the applicant’s proposed residential flat building contains ten dwellings in what clearly appears to be a single, long building but having some modulation in the stepped setbacks of its facade (the stepping takes into account that Renny Lane is not parallel to the southern elevation). The proposed building has the appearance of three storeys near the eastern end but otherwise appears as a four storeys for the major part of its length along the lane frontage.

    71. The proposed residential flat building is in a conservation area, and on the other side of narrow Renny Lane are seven terraces at 46 to 48 Renny Street. Each of the residents of these terraces objected to the proposed development. In summary, their concerns related to the bulk and scale of the proposed development, overshadowing and overlooking. These terrace houses are also in the same conservation area and are generally two storeys in appearance, although at least one of the terraces has part of a third story in an attic and there is one single-story terrace. Having regard to my inspection of the terrace houses and the written objections, it appears that most residents frequently use their northern-facing small rear yards and the rear north-facing rooms of their terraces. The proposed building would appear somewhat a little more bulky and out of keeping with the scale of the terrace houses than the approved buildings.

    72. The applicant referred to certain new developments further to the west in Renny Lane. These developments are also out of keeping with the two-storey terraces opposite. However, the upper fourth storeys in the new developments appear to be set back further from the lane than the proposed upper floor in the subject development.

    73. The proposed residential flat building would bring about a marked change from the present environment that the residents enjoy. They presently look to a part of the subject site where there are no buildings and where there are several large trees. These trees will have to be removed for the proposed development. Having regard to the small setbacks of the proposed units from the lane, it is unlikely that trees of the size shown in the model of the proposed development (ex D) would be appropriate or would grow to the height represented.

    74. The amenity of the residents of the terraces on the opposite side of Renny Lane would also be affected by overshadowing from the proposed residential flat building. Plan DA-02E shows that at 9 am on 21 June, five of the terrace houses would be fully overshadowed in their rear yards and on at least the ground floor of the rear rooms of the terraces, and two other houses would also be substantially affected by overshadowing. At 12 pm on 21 June, four of the yards of the terrace houses would be overshadowed to a noticeable degree, and the terrace house at 54 Renny Street would still appear to have the practically the whole of its rear yard overshadowed by the combined shadows from the proposed development and from the side boundary fence or wall. After 12 pm, the overshadowing would continue to diminish with no overshadowing occurring at 3 pm.

    75. An old residential flat building at 2 Renny Lane also causes overshadowing of some of the rear yards of the terrace houses but this old building is not the sort of building that would be approved today.

    76. The overshadowing from the proposed development is a negative factor. In defence of the proposed development, through its experts the applicant highlighted the fact that the overshadowing from the Court-approved development was similar to the overshadowing from the proposed development and in some cases was slightly less. However, in DCP 6 there are provisions specifically directed to protecting the sunlight access of the terrace houses. Under clause 5.2 of DCP 6, buildings may generally be to a height of RL 75. However, it is apparent from a reading of the various provisions of clause 5.2 of DCP 6 that such a height of RL 75 would be appropriate for developments that do not cause overshadowing the adjoining residential properties. Among the objectives of the height provisions in the DCP is the objective of “the protection of existing standards of sunlight access to adjoining residential properties” . One of the height controls in clause 5.2 of DCP 6 states: “Existing levels of sunlight access to adjacent residential properties are to be maintained, and wherever possible enhanced.” It would appear that a two-storey or perhaps three-storey residential flat building, with a suitable setback of its upper level and roof elements, could achieve that control but the proposed development does not.

    77. Having regard to the fact that a development could be carried out in accordance with the consent of 9 August 2001 which would have similar overshadowing impacts of terrace houses, I do not consider that the currently proposed development should be refused because of overshadowing. However, the degree of overshadowing to adjoining properties in mid-winter (and perhaps for a month or so either side of mid-winter) is certainly not a positive aspect of the proposed development. (Solar access for the proposed units themselves is considered under the next heading.)

    78. The residents were also concerned about overlooking, particularly from the proposed upper level of the residential flat building. An inspection of the rear yards of the terraces indicates that in most cases future occupants of the proposed residential flat building would be able to look down over the rear boundary fences or walls of the terrace houses and over landscaping adjacent to the rear boundaries into the generally private rear yards of the houses. While the separation distance between the proposed residential flat building and the rear rooms of most of the terraces is about 22 m, the privacy impacts on the rear yards would be more noticeable. In the Court-approved development, unit 8 at the upper level has a large balcony, but overlooking from this balcony would be restricted by a permanent planter box approximately 1 m wide along the whole length of the balcony behind the parapet. The approved development also has a small recessed balcony for unit 7. The proposed development would give the impression of greater overlooking, because of the greater extent of the open balconies with glass balustrades extending along the whole of the uppermost level (even though these balconies are off bedrooms). At the second highest level in the proposed development, there are aluminium sliding-screens to the balconies, but whether these screens are left open or not is beyond the control of the residents on the opposite side of the lane, who could be overlooked although not themselves able to look into the proposed units.

    79. In addition the above amenity impacts from the proposed residential flat building, the proposed restaurant referred to earlier would also result in some adverse amenity impacts for the residents of Renny Street and adjoining streets late at night. The proposed development does not provide any car parking spaces for the proposed restaurant. I accept the evidence of Mr C Hallam, consultant traffic engineer, that at night people are less inclined to go to restaurants by public transport and that the proposed restaurant would create a significant demand for car parking spaces. In the locality, residents experience difficulty at night-time in parking close to their dwellings. Cars of the restaurant patrons would add to the problem. Insofar as parking spaces might be available outside dwellings in the locality and be used by patrons of the restaurant, boisterous behaviour from the patrons late at night or the noise from car doors banging, or from the engines of cars starting, is likely to cause disturbance to some residents.

    Design quality and internal amenity of proposed units

    80. Reference has been made to SEPP 65 (par [21.], which applies to the proposed residential flat building facing Renny Lane. Design quality principle 7 in clause 15 of SEPP 65 says that “good design provides amenity through the physical, spatial and environmental quality of a development”. This principle further states that “Optimising amenity requires… access to sunlight… visual and acoustic privacy… indoor and outdoor space… outlook.” In accordance with clause 30 of SEPP 65, the design principles have to be taken into account when determining a development application, together with the publication Residential Flat Design Code (a publication of the Department of Planning, September 2002). Of particular importance for the present appeal are the provisions of this code relating to daylight access (pp 84-85) and separation of buildings.

    81. SEPP 65 takes precedence over DCP 6 and must be considered in relation to the present development application. This state policy did not apply at the time the Court considered the development in the previous appeal.

    82. In relation to overshadowing of the proposed units, I have taken into account the evidence of the witnesses and the shadow diagrams (ex AB and AE), and have considered the various levels and orientation of the proposed buildings on the site.

    83. The proposed residential flat building faces south towards Renny Lane. There is no direct sunlight access to the living rooms on the southern side of the building, although the rooms on this side would receive diffuse light from the sky. On the northern side, there would be significant overshadowing of a large part of the northern elevation of the proposed new building in mid-winter from the two proposed units in the hall. The altered hall would be located only 5 m from the proposed residential flat building. There would also be overshadowing of the lower levels of units 9, 10, 11 and 12 from the proposed tower element containing the lift, stairs and vents on the northern side of these units. Moreover, unit 11 on the lowest level would be affected by the proposed high boundary wall on the north-western common boundary between the subject land and 2 Renny Lane.

    84. The uppermost level of the proposed residential flat building is called “level 2” on the architectural plans, although this level is the fourth storey above natural ground level at Renny Lane for about the western half of the building. Roof lights provide light to internal bathrooms or toilets of three of the units at level 2 (units 6, 8 and 10). Because level 2 is the top floor of the residential flat building there would be good sunlight access to the bedrooms on the northern side. However, the living, dining and kitchen rooms of units 6, 8 and 10 are a level below, on level 1. Although at mid-winter there would be limited sunlight penetration into part of the living rooms, most of the internal area of each unit on this level would have to rely on diffuse daylight. The rooms on the northern side of level 1 have direct access to terraces, which to some extent compensate for the lack of sunlight to the internal habitable areas. However, overshadowing from the hall located 5 m to the north of these terraces would affect the terraces themselves mid-winter.

    85. At the lower levels, namely the Plaza level and Renny Lane level, direct sunlight is much more limited (or non-existent) to some living areas on the northern side of the building. Although the lowest level is called the Renny Lane level, the rooms towards the northern side of this level are almost wholly below natural ground level, because the land slopes up from Renny Lane in the south, and an excavated area has to be provided on the northern side of the residential flat building which would generally be overshadowed by the retaining wall or the hall.

    86. As mentioned earlier, there are two proposed units in the altered hall, units 2 and 3. These units face south and have no northerly aspect. These units look directly at units 4, 6 and 8, which are only 5 m away. This is not a good-quality outlook for units 2 and 3.

    87. Visual privacy and particularly aural privacy between, on the one hand, units 2 and 3 in the hall and, on the other hand, the directly facing units in the proposed new residential flat building would also not be good.

    88. In the Court-approved development, the separation between the hall and the two approved residential flat buildings was 6 m.

    Other matters

    Incorporate Regent Street Park?

    89. One of the issues in relation to landscaping was whether the landscaping in Regent Street Park should be integrated with the proposed landscaping on the subject site. Map 5 of DCP 6 has an arrow pointing to the area between the western side of the church and Regent Street with the notation: “Area to be linked and integrated with existing public open space in Regent Street closure (possible section 94 contribution).”

    90. The applicant, no doubt having regard to DCP 6, originally submitted a landscape plan showing a complete revision of the existing landscaping in the park and showing an integration of the park with the private property on the subject land adjoining the church building. This plan was overwhelmingly criticised by the many objectors to the proposed development. In their view, a private developer was enhancing its project at the expense of the public domain. There was also evidence from the objectors to the effect that the landscaping in the park is now quite adequate, and that the park is regularly used by members of the public (including customers and employees of shops in the locality). The park is not only a thoroughfare but is a place where members of the public sit on the seats provided or on the lawn. During my inspection of the locality with the parties, I found the park to be a pleasant vegetated area available for public use in a locality that is otherwise mostly dominated by built forms.

    91. Recently, the council has expended money in upgrading the condition of the park. In the circumstances, a departure from the DCP may be warranted, particularly in the light of the extensive opposition to the applicant’s proposal to change the layout and landscaping of the park. During the hearing, several landscape plans were tendered by the applicant. The latest landscape plan (ex AF) retains the present layout and landscaping of the park and provides for some landscaping of the subject site.

    Location of substation

    92. The proposed location of an electricity power substation on the subject site next to the landscaped park in the closed-off section of Regent Street is not altogether good. On my inspection with the parties, a substation was pointed out in Renny Lane on a redeveloped site to the west of the subject land. It seems to me that the preferable place to have the substation is near any new residential flat building, out of view of pedestrians using Regent Street Park and Oxford Street. There was no first-hand evidence from the electricity authority as to the size of the substation. Apparently there are electricity cables underground near the subject land in the Regent Street Park and no doubt it would be convenient to locate a substation close to those lines. However, the recent development to the west in Renny Lane suggests that a large substation may be located further away from the major underground electricity lines. Nevertheless, if the evidence clearly establishes that the substation cannot be located out of view of persons in the park, the location shown on the applicant’s landscape plan could be accepted. There would need to be a condition, as suggested by Mr Home, to the effect that the area of the substation is to be hand-excavated to minimise any root damage to the large protected trees nearby, and any roots found in the excavated area would need to be cut off by handsaw or secateurs to allow natural re-growth of roots.

    Finished levels next to the church; disabled access

    93. Mr Woolley gave evidence of appropriate site levels immediately adjoining the church building. His recommended levels were subsequently shown on the plan (ex AM). It was Mr Woolley’s opinion that disabled access should be given through the front main doors of the church rather than through a specially created entrance to the side of the main doors.

    94. Although the adoption of Mr Woolley’s finished ground levels would mean that the base course of the church building would not be exposed at the front, provision could be made elsewhere for the base course to be seen. In particular, the original ground levels would be retained between the western wall of the church and the slightly higher levels of the adjoining disabled access ramp.

    Carparking spaces near the new manse

    95. The council was opposed to having two spaces for carparking located between the eastern side of the new manse and the park boundary, with access from Renny Lane. If such spaces were provided, a condition of consent would need to be imposed that no carport or other structure over the carparking spaces be erected. Such a structure would tend to detract from the appearance of the new manse. In the Court-approved development carparking spaces were provided for the occupants of the new manse in the carpark underneath the two new residential flat buildings that were then proposed.

    Generally

    96. For the reasons given above in relation to unsatisfactory aspects of the proposed restaurant the proposed residential flat building, this appeal will be dismissed.

    97. There were other matters about which the experts conferred and were not able to come to an agreement, including whether a conservation management plan should be fully prepared before granting consent. In the circumstances, it is unnecessary to resolve the differences that still exist between the parties concerning various conservation issues, such as how to protect or conserve the stained glass windows in the church.

    98. In respect of any other development application that may be made for development of the subject site, it would be relevant in the public interest to take into account this decision as well as the decision in the previous appeal. A consent authority would of course be entitled to depart from a particular finding in the judgments for an appropriate reason, such as the submission of additional or different evidence.

    Orders

    99. Accordingly, the orders of the Court are:

      1. The appeal is dismissed.

      2. The exhibits, other than exhibits S, U, Y and AH, may be returned.
                        A J Nott
                        Commissioner of the Court
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