Woollahra Corporation Pty Ltd v Sydney City Council

[2005] NSWLEC 670

Land and Environment Court

of New South Wales

CITATION:

Woollahra Corporation Pty Ltd v Sydney City Council [2005] NSWLEC 670

PARTIES:

APPLICANT
Woollahra Corporation Pty Ltd

RESPONDENT
Sydney City Council

FILE NUMBER(S):

10971 of 2000

CORAM:

Bly C

KEY ISSUES:

Development Consent :- Modification of development consent - heritage items and conservation area - residential amenity - site landscaping - car parking - intensification of land use.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
South Sydney Local Environmental Plan 1998
South Sydney Development Control Plan 1997 - Urban Design
South Sydney (Heritage Conservation) Development Control Plan 1998 ·
Development Control Plan No. 11 - Transport Guidelines for Development
Council of the City of South Sydney Development Control Plan No. 6

DATES OF HEARING:

31/10/2005 and 1 & 9/11/2005

 
DATE OF JUDGMENT: 

11/24/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Austin, SC
with Dr S Berveling, barrister
Instructed by Mr C Thompson, solicitor
of Gwynne Thompson

RESPONDENT
Mr S Kondilios, solicitor
with Ms P Adraskelas
of Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

24 November 2005

10971 of 2000 Woollahra Corporation Pty Ltd v
Sydney City Council

JUDGMENT

1 On 9 August 2001 the Court granted conditional development consent for the redevelopment of the St. John's Church site at 261 - 263 Oxford Street, Paddington ("the existing consent") as follows:

• The restoration and modification of the church, the church hall and the old manse including basement extensions for restaurant, kiosk and retail purposes.
• The restoration and extension of the new manse as a dwelling.
• The erection of a new residential flat building with basement car parking fronting Renny Lane.
• The subdivision of the site into three lots.

2 Subsequent to the Court's decision the site was acquired by the present applicant from the Uniting Church Australia Property Trust. An appeal in relation to a development application for a development similar to the approved proposal was dismissed by the Court on 16 December 2003. The Court's judgement in relation to this matter is of no relevance to the determination of the different application now before the Court.

3 The applicant now seeks to amend the consent of 9 August 2001 under s 96AA of the Environmental Planning and Assessment Act 1979 by way of amendments to conditions including Condition 9 which is to refer to amended plans. In response to the evidence a number of relatively minor changes to the present proposal have been made either by changes to the plans or suggested conditions.

4 Of the 38 conditions now sought to be amended, agreement has been reached in relation to the majority of these. The principal issues associated with the remaining conditions in dispute involve design changes associated with:

• the residential flat building, its basement and associated landscaping,
• the new manse and associated landscaping and car parking,
• the old manse, the kiosk and the central courtyard, and
• site landscaping generally.

5 The remaining conditions in dispute (other than those associated with the principal issues) mainly involve:

• approval of mechanical ventilation details,
• approval of a schedule of conservation works,
• the issue of subdivision and occupation certificates,
• approval of rectification and restoration works,
• approval of a detailed landscape plan,
• approval of works associated with footpath crossings,
• the need for additional dilapidation reports.

The site

6 According to the Statement of Basic Facts, the site, being Lot 1 DP 792757 is a corner site located on southern side of Oxford Street in the Paddington retail strip. It has frontages to Oxford and Regent Streets and at the rear, Renny Lane. Where the site fronts Regent Street, the street has been closed and landscaped.

7 The site is largely flat with a 3 m slope down to Renny Lane. It has three existing buildings on site, all heritage listed and associated with the former St. John's Church use of the site. These three buildings are: the church and attached hall; the old manse; and the new manse. The site is situated within a conservation area.

8 The site is within a strip of mixed uses along Oxford Street, and adjoins the Commonwealth Bank Building to the west on Oxford Street. This building is heritage listed. To the west of the site on Renny Lane is a three level residential flat building. At the rear, across Renny Lane is a row of terrace houses, which face Renny Street. The yards of these one and two storey dwellings and some rear garage/studio buildings face Renny Lane and many have roller doors providing vehicular access.

9 Applicable planning instruments are as follows:

• South Sydney Local Environmental Plan 1998 ("the LEP"),
• South Sydney Development Control Plan 1997 - Urban Design ("the urban design DCP")
• South Sydney (Heritage Conservation) Development Control Plan 1998 ("the heritage DCP")
• Development Control Plan No. 11 - Transport Guidelines for Development ("the transport DCP"),
• Council of the City of South Sydney Development Control Plan No. 6 ("DCP 6").

10 Pursuant to the LEP the site is zoned 10 (Mixed Uses) and in this zone the proposal is permissible with development consent.

11 Whilst it is not a statutory Instrument the report titled Conservation Analysis St. John’s Church, Old Manse and New Manse Oxford Street, Paddington ("the conservation report") is a relevant matter for being the basis for the preparation of DCP 6.

12 The development application was initially advertised by council in August 2005 and readvertised in September 2005 upon receipt of amended plans. Some 26 submissions were received objecting to the proposal. These objections raise matters of concern including:

• The proposed changes are inappropriate in the context of the heritage significance of the buildings on the site and the surrounding conservation area,
• The residential flat building is to have its appearance changed, size increased and will have additional impacts on nearby residential amenity.
• The change of use and increased intensity of the cafe/kiosk in the courtyard is inappropriate,
• The inappropriateness of significant reductions to the approved soft landscape areas especially the reduced number of trees.
• The inappropriate location of mechanical services plant rooms and ventilation ducts/outlets adjacent to Renny Lane,
• The inappropriate nature of new fences and gates in Regent Street and Renny Lane,
• The inappropriate and dangerous provision of tandem car parking spaces off Renny Lane,
• The need for additional properties to be included in the dilapidation report’s condition,
• The denial of pedestrian access to the rear of the church hall,
• The increased vehicular traffic in Renny Lane.

13 The council received the modification application on 13 July 2005. By letter dated 6 October 2005 the council wrote to the applicant seeking further information to enable it to assess the application. The applicant responded to this letter on 19 October 2005. The application has not been determined by the council; the hearing of the appeal beginning on 31 October 2005 on the basis of a deemed refusal.

14 On behalf of the respondent council expert evidence was given by:

• Ms C Kemp - a council heritage specialist
• Mr J Swan - a council town planner.

15 On behalf of the applicant expert evidence was given by:

• Mr G Brooks - heritage architect
• Mr R Chambers - consultant town planner
• Mr J Coady - consultant town planner and traffic engineer

16 The hearing began with a site inspection when evidence was given by a number of objectors who explained and elaborated on their written objections. Other objectors also gave evidence in Court.

17 At least one of these objectors expressed serious concern that they had not been given a reasonable opportunity to consider very recent changes to the proposal. This concern is recognised. However, understanding them as I do, these relatively minor changes are not such that I cannot properly deal with them taking into account the basis of the objections. Indeed I am satisfied that in this context these amendments are likely to be either neutral or would improve the proposal.

18 Having considered the Statement of Issues, the evidence and the submissions made by the advocates, I have decided that the principal issues in this case can be dealt with in terms of the modifications associated with:

• the residential flat building,
• the new manse,
• the central courtyard,
• site landscaping.

19 There are to be a number of changes to the residential flat building mainly Including:

• Rearranged floor plans and increased floor areas,
• Changes to landscaped areas and courtyards,
• Rearranged basement including stormwater detention, tank mechanical services, plant room and exhaust ducting,
• Changes to fenestration on the Renny Lane elevations.

20 No serious concerns were raised in relation to the floor plans and floor areas, however, the revised landscaping provision and courtyards were criticised. I am nevertheless satisfied that the provision of landscaping and courtyards for the dwellings in the residential flat building will be satisfactory. In this regard I particularly take into account the fact that the treed presentation of the development to Renny Lane will be essentially unchanged and the revised planter box arrangement to the west of Apartment 5 will introduce a vegetative presentation to the lane, in lieu of a masonry wall. Landscaping generally is dealt with later.

21 Miss Kemp was concerned that the changes would be less sympathetic to the terrace forms of surrounding development. Whilst Mr Brooks did not agree the applicant has agreed to changes to the Renny Lane elevations in the manner of projecting masonry nibs characteristic of terrace housing.

22 Residents were concerned in relation to increased opportunities for overlooking and as well as noise and fumes that might be emitted from the revised exhaust duct arrangement from the basement. The exhaust duct concerns can be dealt with by an appropriate condition of consent.

23 The fenestration changes include different access arrangements from Apartment 7 onto terraces that form part of the existing consent. These are arranged in such a way that additional overlooking opportunities should not result. More generally I agree with Mr Chambers that the presentation of the development to Renny Lane is, in context of the conservation area, appropriate and would be an improvement by comparison with the dominating rear garage doors on the opposite side of the lane.

24 Changes to the new manse, a listed heritage item under the LEP include:

• a rearranged floor plan,
• the provision of timber decking as part of the landscaped area,
• the deletion of stair access to the basement car park, and
• the provision of a pair of tandem car parking spaces and associated access gates to the east in an area previously set aside for landscaping.

25 No serious concerns were raised in relation to the revised floor plans. However, concerns were raised in relation to the timber decking in the context of site landscaping generally as well as some initial concerns in relation to possible impacts on an existing Grevillea tree that is to be retained. The latter concern can be dealt with by appropriate conditions to protect the roots of this tree and I see no problem in terms of the amenity of the new manse in the provision of part of its landscape area in the manner of timber decking. Again the matter of site landscaping generally is dealt with later.

26 The major concerns relate to the proposed tandem car parking spaces. These concerns are essentially threefold: the loss of landscaped area; safety concerns resulting from the need to reverse onto Renny Lane and Regent Street; and heritage impacts. Mr Chambers explained that the car parking spaces had been taken out of the basement and placed adjacent to the dwelling for convenience; the present access up two flights of stairs from the basement being far less convenient.

27 A comparison of the proposed landscape plan and the approved landscape plan shows that the provision of car parking in this location will result in the loss of an area of lawn and Murraya paniculata hedge planting adjacent to Renny Lane where the gates are to be provided. This area is to be provided with a gravel standing area for vehicles. Shrubbery at the northern end of the lawn area is to be relocated further to the north. Mr Swan was concerned at the loss of soft landscaping and its replacement with a gravel area (previously thought to be hard paved). Mr Chambers had no such concerns and I agree that the difference in appearance from within the site and from the public domain would be minimal.

28 Both Mr Swan and a number of residents were very concerned that pedestrians in Renny Lane and Regent Street would be at risk from the vehicles reversing from these parking spaces. The unsafe manoeuvres include situations when the tandem parked vehicles are required to be swapped. Mr Coady disagreed explaining that this is a low-volume low speed vehicle environment. He said that the two car spaces would generate a very low number of vehicle movements and sight lines are good he also said that overall there would be few pedestrians in the immediate vicinity of this car spaces.

29 Whilst there may be more pedestrians in this area than anticipated by Mr Coady, I nevertheless agree with him for the reasons he has given especially taking into account that this locality is a low-volume, low speed traffic environment.

30 It has now been agreed that an appropriate form of fencing and gates, responsive to heritage requirements, can be provided for this part of the site. However Miss Kemp was of the opinion that the provision of car parking effectively in the front garden of a building in a conservation area is inappropriate. She explained that the heritage DCP requires that parking should not interfere with the visual appreciation of heritage items and should respect existing vegetation and original garden layouts. It also does not comply with the relevant objectives of DCP 6 which requires the protection and enhancement of the site's visual quality and the adjoining streetscape.

31 Mr Brooks was of the opinion that the relevant curtilage of the new manse should not be regarded in the same fashion as a traditional front yard of a terrace house. He did not accept that there would be any adverse visual impact resulting from the introduction of the gravelled car parking area. Conversely Miss Kemp believed that parked cars in this location would adversely affect the visual presentation of the building especially in terms of its landscape setting facing Regent Street. This would be unacceptable given that there are alternate locations for the provision of car parking.

32 The approved landscape plan with its Murraya hedge provides for this part of the site to be used as a private courtyard. This hedge would largely, if not entirely, prevent views of the lower part of the new manse from outside the site. The proposed parking arrangement, taking into account the now proposed landscaping will, to the extent of the new semi-transparent nature of the gates, provide some limited views from Renny Lane to the new manse and of course to the parked cars.

33 The conservation report identifies this part of the site as having a high significance. Taking this into account I do not accept that the provision of gates and a gravel hard stand area would adversely affect this significance. The appearance of motor vehicles in this location will have a greater impact on the new manse and its site but I do not accept that this impact would be such that this part of the site should not be used for car parking.

The central courtyard

34 The approved architectural and landscape plans show that the central courtyard, generally between the church, the church hall, the old manse, the western site boundary and Oxford Street is to be developed with soft landscaping including gardens, trees and two ponds and paved areas. In addition to the ponds, the soft landscaped areas include: a 4 m wide (by scale) planter alongside the church, extending to and partly along Oxford Street and containing six trees and other plantings; a 700 mm and 2.7 m wide (by scale) planter beside the old manse containing one tree and other plantings; and a 5 m x 4.8 m (by scale) planter between the old manse and the kiosk, containing an existing cheese tree, bicycle parking and various other plantings.

35 The plans also show two new structures: a bin storage building (by scale 1.8 m x 12.6 m) and a kiosk building (by scale 2.5 x 13.2 m) containing a disabled toilet and a stair providing access to the basement that contains the associated kitchen, bin room and toilets, including the relocated disabled toilet. Between these structures is a hard paved area shown as "outdoor seating" which area is adjacent and clearly associated with the kiosk. This outdoor seating area has an area of about 100 sq m (by scale) although this area could not be used totally for outdoor seating, as an area would be required for access, particularly as there is an entrance onto the site off Oxford Street between the two ponds.

36 There is a second hard paved area between the old manse and the bin storage building and the planter beside the church. This area is generally about 2.5 m wide (by scale) and extends from Oxford Street through the central courtyard to the residential flat building at the rear. It is not marked on the plans for any particular purpose but given its configuration it is plainly intended as a central pedestrian access corridor through the site.

37 The proposal (as now amended) is quite different. The kiosk has almost doubled in size (by scale about 4.5 m x 15.5 m) and becomes a restaurant/bar also incorporating two stairs and a lift that is to be used for access to the basement including the kitchen, toilets for disabled persons and the bin room. The basement is significantly increased in size. The size of the bin store is unchanged but it is now to be used as a store for the outdoor restaurant as well as incorporating ventilation ducts for the basement. It, like the restaurant/bar structure, will have glazed doors that convert into awnings, enabling both structures to be used for restaurant/bar purposes.

38 The planter beside the church is now significantly smaller and comprises two elements: a 2 m x 2 m planter containing a tree near the church hall and an irregular shaped planter that is 1.8 m, 1.66 m and 3.6 m wide extending from Oxford Street and partly alongside the church. Between this planter and the church there is to be an access ramp for disabled persons.

39 Replacing part of the planter beside the church and the central pedestrian access corridor and extending across to the old manse is an area of about 70 sq m (by scale) shown as "outdoor seating". Added to this is another area marked "outdoor seating" of about 50 sq m (by scale) between the now proposed planter and the outdoor restaurant store. The revised outdoor seating area between the new outdoor restaurant store and the restaurant/bar will have an area of about 100 sq m (by scale). These areas need to be reduced to take into account access paths through them.

40 Clearly, taking also into account the additional areas within the two new structures, the seating areas have more than doubled in area and the soft landscaped areas have been approximately halved. The appearance of the now proposed central courtyard will be very different to the approved courtyard.

41 Under the LEP the subject property comprises Heritage Item No 805 including the church and its additions, the old manse and the new manse. The heritage objectives of DCP 6 require that the heritage buildings not be obscured and should be able to be interpreted for the public benefit. The historic relationship with Oxford Street should not be altered or concealed. The open space objectives require the protection and improvement of visual quality and generally emphasise the need for trees on the site.

42 Distinguishing it from other parts of the site generally behind the church, Map 2 of DCP 6 does not show the central courtyard as a development site. Consistent with this, Map 5 shows it as an area requiring "special landscape treatment" to interpret the setting of the old manse and the church as well as providing for pedestrian access. Unfortunately an explanation is not given as to what is meant by special landscape treatment.

43 In principle I agree with Mr Chambers that the central courtyard is, subject to the provision of appropriate access, suitable and indeed appropriate for outdoor seating for dining purposes. I also agree with Mr Brooks that such purposes are not inconsistent with the heritage significance of the church and old manse and provide appropriate opportunities to appreciate these buildings.

44 I recognise that outdoor dining can be distinguished from the more informal outdoor eating that might be associated with the approved kiosk. If there were no adverse consequences of any associated increase in intensity of use associated with dining purposes and the increased area of the courtyard for this purpose I would otherwise have found this use to be acceptable. Also it would be an appropriate land use in the context of the zoning of the land and the shopping strip in which it is located.

45 Mr Chambers said that the amount of paving now proposed increases access through this part of the site even taking into account the extent of additional outdoor seating. A comparison of the approved and proposed courtyard plans leads to the conclusion that this may not be correct. Taking into account that access is provided throughout the outdoor seating areas, this reveals little difference between the two schemes, although the approved design has a central, seemingly dedicated, access pathway from Oxford Street.

46 Mr Swan was concerned that the increased use of the courtyard for seating and dining compromises the landscaping by significantly reducing the area provided. Its character is also changed by the intensity of this outdoor seating. Together these matters have a negative impact on the setting of the heritage buildings.

47 Miss Kemp had a number of concerns in relation to the proposed changes to the central courtyard. First the increased clutter associated with the additional outdoor seating, would visually detract from the setting of the heritage items and reduce the ability to visually appreciate these items. This is inconsistent with the objectives of DCP 6. Second the reduced amount of soft landscaping resulting in it becoming an area of predominantly hard landscaping/paving, would adversely affect the setting of these items; again this is inconsistent with the objectives of DCP 6.

48 Miss Kemp also referred to the existing predominantly soft landscaped setting of the church and the old manse. She explained that low scale soft landscaping would provide an appropriate setting and would not prevent the appreciation of these heritage buildings. Also, in an urban context, soft landscaping is more traditional and more important. She identified the landscaping at St Mark's Church at Darling Point as being a good example of how this should be achieved. Mr Swan agreed that a low soft landscaped setting is an appropriate response for the church.

49 Conversely Mr Brooks was of the opinion that by comparison with the approved landscaping scheme and taking into account disabled access the proposed landscaping is sufficient when considered in combination with the trees in Oxford Street. He did not agree that any further soft landscaping beyond what is now proposed would be of any value to the heritage setting, hard paving being more appropriate. Mr Chambers agreed, adding that there was no planning policy that would require the provision of soft landscaping.

50 In relation to the kiosk structure Miss Kemp was concerned that it had been increased in size and moved closer to the old manse, eliminating the landscaped area apart from the provision of a replacement tree. These matters adversely affect its setting. The structure also adversely affects the historic relationship between the old manse and the church when viewed from Oxford Street, this is because the two new structures are located in the area that has, according to the conservation report, the highest ranking of heritage significance. There is no justification for worsening the impact on the old manse.

51 Mr Brooks disagreed with Miss Kemp in relation to the kiosk structure. He explained that despite its increased size, its clear glazed character, would minimise any impacts on the old manse when viewed from Oxford Street.

52 In its previous judgement the Court accepted the size, nature and location of the bin and kiosk structures and I continue to be of the opinion that two structures in the locations proposed would be appropriate. As Mr Brooks said, this design approach is now mainstream. However, I agree with Miss Kemp that the increased size of the kiosk structure is problematical despite the provision of appropriate lighting and being constructed largely of glass. The transparent nature of this structure will be somewhat reduced by its various structural elements including the window/door mullions especially when viewed obliquely. Also, because it will need to be fitted out internally and will contain furnishings, stair balustrades and the lift, these things will further reduce its transparency. The view corridor will also be reduced as a result of the increased size of the structure and its closer proximity to the old manse. Hence, by comparison with the approved design, views of the old manse will be reduced and this is inconsistent with the requirement of the DCP regarding the maintenance of external views from Oxford Street.

53 In these circumstances I agree with Miss Kemp and Mr Swan that the adverse impacts resulting from the changed kiosk structure make it unacceptable.

54 I also agree with Miss Kemp and Mr Swan in relation to that provision of an appropriate landscaped setting for the church and the old manse particularly with regard to soft landscaping. This is because the reduction in the amount of soft landscaping as represented by the present proposal would not be responsive to the urban and historic context of the site.

Landscaping generally

55 It is not in doubt that the amount of soft landscaping shown on the proposed landscape plan is, by comparison with the approved landscape plan significantly reduced. The landscape objectives of DCP 6 encourage the preservation of existing mature trees and hence by inference if mature trees are to be removed appropriate replacements should be provided.

56 Taking into account the provision of trees to the north and south of the residential flat buildings and to the east of the church; the agreement reached between the heritage experts regarding trees to the west of the church, I am satisfied that the provision of trees as now proposed would be satisfactory.

57 Mr Swan was concerned that the significant increase in the size of the basement under the central courtyard would result in reduced opportunities for deep soil plantings. However given the satisfactorily provision of trees on the site and subject to the provision of an appropriate amount of low scale soft landscaping, this may not be of critical concern. Also, additional landscaping needs to be provided in response to heritage requirements and to soften the impact of the extensive areas of hard paving in the interest of public amenity.

58 Apart from the landscaped areas already discussed, concerns were also expressed by Mr Swan in relation to the loss of soft landscaped areas including areas to the north and east of the old manse, to the north of Apartment 1, to the east of the church. Because I have decided that the changes to the structures in the central courtyard are unsatisfactory the existing consent will prevail and hence the landscaping arrangements surrounding the old manse will continue to apply. The landscape area to the north of Apartment 1 can be reconsidered in a revised landscape design.

Conditions

59 Conditions 1(b), 6(a), 6(b)(i) and (ii), 26 and 60 contain requirements for various further approvals and to the extent that these conditions require such further approvals were opposed by the applicant because of concerns that excessive delays in dealing with these applications could result in the lapsing of the consent.

60 I have amended Conditions 1(b), such that a further approval is not required. However, conditions 6(a) and 26 are retained such that approval is required because the Schedule of Conservation Works and the associated Maintenance Management Plan are of critical importance, requiring careful scrutiny, taking into account the heritage significance of the buildings affected by the consent. Conditions 6(b)(i) & (ii) are retained for similar reasons. In this context I expect that upon receipt of the documents required by these conditions the council will deal with these matters without delay.

61 Condition 9 needs to be amended to refer to the now required amended architectural and landscape plans.

62 Conditions 22, 23, 27, 41, 53, 61 and 78 are deleted as agreed.

63 Condition 60 is amended, deleting the requirement for a further landscaping approval. The landscaping details required by the condition should be included in the required revised plans which will be incorporated into condition 9. Condition is 70 is similarly amended.

64 I agree with the amended versions of Conditions 80 and 82 as well as the remaining agreed conditions or additional conditions proffered by the applicant, including the Regent Street fencing Condition 135.

65 Condition 133 requires that doors to the eastern side of the Church Hall shall be closed from 10 pm at all times. This was opposed as being unduly restrictive. However, whilst accepting that Condition 134 does not allow this area to be used for outdoor dining purposes, I nevertheless agree that the condition should be imposed to protect the amenity of the nearby residential area especially in Regent Street.

66 The revised conditions are attached hereto as Annexure A

Conclusions

67 For the reasons given above, I have reached the conclusion that the proposal in its present form should not be approved. However the appeal can be upheld in part and the existing development consent amended, in accordance with this decision. I see no reason why those elements of the proposal that I have found to be unsatisfactory cannot be excluded from a modification consent. Should the applicant wish to proceed, this will require the preparation of amended architectural and landscape plans reflecting this decision. This does not mean, in the context of this application, that plans can be prepared for a revised design for the two new courtyard structures, associated basement and additional outdoor seating areas. Amended architectural and landscape plans should be provided to the Court within 21 days of this judgement.

68 Upon receipt of amended plans and revised conditions the orders of the Court will be:

1. The appeal is upheld in part.
2. The orders of the Court granting conditional development consent for the redevelopment of the St. John's Church site at 261 - 263 Oxford Street, Paddington, are amended in accordance with Annexure A hereto:
3. Exhibits are retained.
4 There is no order as to costs.

___________________

T A Bly
Commissioner of the Court

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