WOLSKI LYCENKO BRECKNOCK v. SYDNEY CITY COUNCIL No. 10666 of 1995 [1996] NSWLEC 16 (9 February 1996)

Land and Environment Court of New South Wales

Record of hearing

Judge Talbot J with Hussey A

Number 10666 of 1995

Parties Applicant Wolski Lycenko Brecknock

Respondent Sydney City Council

Key Issues . Set back and privacy conditions

. Interpretation of planning controls

Statutes . SREP 26 - City West

Hearing dates 5 - 8 February 1996

Judgement Reserved

Date of judgement 9 February 1996

Appearances Applicant Mr J Bingham (Solicitor)

Respondent Mr P McEwen (Barrister)

Solicitors Applicant Corrs Chambers Westgarth Solicitors

Respondent Gadens Ridgeway Solicitors

Number of pages 10

Summary of orders

. Determination of application by granting consent

IN THE LAND AND						MATTER No. 10666 of 1995

ENVIRONMENT COURT			CORAM: Talbot J

OF NEW SOUTH WALES			WITH:  Hussey A

						DECISION DATE: 9 February 1996

WOLSKI LYCENKO BRECKNOCK

Applicant

v

SYDNEY CITY COUNCIL

Respondent

JUDGEMENT

The property the subject of these proceedings is known as 117 - 125 Murray Street, Pyrmont comprising Lots 23 - 27 in DP 33491 with a frontage of 24 metres to Murray Street and a depth ranging from 36.765 metres in the north to 27.275 metres at the southern extremity. A 1.2 metre wide right of way extends along the side and rear boundaries.

The site falls from north to south. The existing improvements include five single storey brick terrace houses constructed up to the front and side boundaries. There is a small rear yard attached to each dwelling.

The applicant proposes to demolish the existing terrace houses and to erect a ten level residential development comprising 41 units and ground floor commercial floor space over three basement levels of parking.

The following planning controls apply to the site:-

(a) Sydney Regional Environmental Plan No. 26 - City West (SREP 26);

(b) Council Policy on Development Controls for Ultimo-Pyrmont adopted by resolution of council on 7 November 1994 (council's policy);

(c) Urban Development Plan for Ultimo-Pyrmont Precinct 1995 Update adopted by the Minister for Urban Affairs and Planning on 23 November 1995 following exhibition of a draft 1995 Update in February 1995 (the UDP).

Pursuant to SREP 26 the land is in the Residential-Business Zone. Uses which the consent authority is satisfied are generally consistent with one or more of the zone objectives are permissible in this zone.

The objectives of this zone are:-

". to encourage a wide range of residential, and commercial and educational uses; and

. to encourage a mix of land uses which is compatible with the achievement of a high-quality residential environment and character; and

. to provide maximum opportunities for people to live and work in the one locality; and

. to accommodate uses which generate employment opportunities; and

. to ensure that the total amount of employment generating development is compatible with the traffic capacity of the Precinct and adjoining areas; and

. to provide for public recreation and tourist facilities which take advantage of the locality and proximity to central Sydney and harbour locations."

The consent authority must take into consideration the aim of the plan that development within City-West should be consistent with the planning principles set out in the table to cl 11 which are, primarily, to promote urban consolidation in the Sydney region.

Before granting consent to development to which an urban development plan applies, the consent authority is obliged, by cl 34, to take that plan into consideration.

The UDP is an urban development plan within the meaning of cl 34.

The objectives of the UDP are stated as follows:-

". assist in achieving a built form which is medium rise but accommodates an intensity of development which is appropriate to the precinct's inner-city location;

. ensure that the built environment will have a positive inter-relationship with the character and functions of streets, squares, parks and circulation areas which the REP defines as the "public domain";

. ensure that the amenity of the precinct for existing and future users, and particularly for residents, is protected and improved;

. demonstrate how high density inner city living can be made more sustainable and reduce the impact of urban development on ecological systems; and

. indicate where development can contribute to the amenity of and the provision or embellishment of the public domain."

Because the present development application had been lodged but not determined at the date of the Minister's adoption of the UDP, it may be determined based upon council's policy pursuant to cl 3.8 of the UDP. The applicant contends that the intention of the savings clause was to maintain a status quo for those development applications already lodged at the time the UDP was adopted, and the application should therefore be assessed on the basis of the council's policy. Except for a change to the definition of "internal courtyard controls", there is minimal relevant difference between the UDP and the policy for the purpose of the assessment of the present development proposal.

In its resolution on 7 November 1994 the council stated that the controls were intended to give clearer interpretation to the controls contained in the pre-existing UDP. They fall into four categories; street wall heights and setbacks, privacy, open space and solar access.

The street wall controls are not in issue in respect of the present development.

The privacy control requires a six metre set back for windows of habitable rooms from rear boundaries. The policy also seeks to improve the quality of open space provided within internal courtyards by controlling the height and set back of buildings fronting these areas. The policy states that this control will ensure that any internal courtyards and the residential units fronting them will have good amenity in relation to natural light, ventilation and solar access. It will also result in courtyards which are appropriately scaled and not dominated by high development. The courtyard wall height is determined by projecting a 45E control plane across the courtyard from a height of 1.6 metres (eye height) on the opposite wall.

The applicant contends that, as there are no internal courtyards proposed within the development, this control has no application. The council, on the other hand, contends that ground level open space between the proposed building and the rear boundary should be regarded as an internal courtyard and suggests that the 45E development control line should be drawn 1.6 metres above the rear boundary. Mr Stephane Kerr, the council's town planner, relied upon a definitive statement that the base of the development control line should be taken from the "other building or property line" in the adopted 1995 UDP Update to support his interpretation of the council policy. The effect of drawing the development control line above the rear property boundary is to reduce the height of the building to four storeys.

The applicant's architect demonstrated in a plan of an east-west section through the centre of the building that, assuming a six metre set back of any future building on the land at the rear of the subject property, the internal courtyard control would be complied with.

Mr Harvey Sanders, a consultant planner, who gave evidence for the council, went further than council's planner and argued that the line should be drawn from a point above the extremity of the excavation into which the rear courtyard of the proposal is set. If the suggestion put forward by Mr Sanders is adopted, no more than one storey could be achieved.

The text of the policy makes it plain that the courtyard control was intended to apply where buildings are erected on either side of the courtyard. It has no application to the courtyards located at the rear of the proposed development. Furthermore, the assumption by the applicant that any new development on the adjoining property will also be set back six metres from the rear boundary, is a logical one.

Immediately to the south of the site is a row of single storey terrace houses similar to those existing on the site. On the opposite side of the laneway at the rear is a further row of single storey terrace houses with frontage to Pyrmont Street. The multi storey Novotel Hotel development is located opposite the site in Murray Street and a ten storey Meriton residential development has been approved and is partly constructed on the land adjacent to the north.

A number of resident objectors have given evidence and, from their point of view, their concerns about the impact of the development are reasonable. However, their real objection lies with the zoning changes affected by SREP 26 and a failure by the planning instruments and the Department of Planning to recognise the heritage significance of the remaining terrace houses. The Court accepts that those residents who object to the proposal have genuine reasons for doing so based on a long association with the area and a commitment to their present lifestyle enlivened by the charm of living in a small terrace house within an inner city area. Development proceeds apace around them. It is inevitable that the zoning and council policy will bring about an end to the tenability of maintaining the existing amenity which, in some respects, is already totally compromised, even if not in the eyes of those who continue to live there. In the circumstances it is very difficult for the Court to solve the dilemma of the resident objectors, even with the best will in the world.

The major debate in the appeal has centred on the proper interpretation of council controls and the application thereof.

It is acknowledged that, in numerical respects, the proposal complies with all of the controls relating to privacy separation, rear set back, open space, solar access and street wall heights. The difficulty rests with the intent and interpretation, and if relevant, the application of the internal courtyard control. This issue was not raised by the council during the initial consideration of the proposal. It was not until an amended set of plans was presented in response to council's reaction and after the adoption of the UDP Update that the issue of the internal courtyard privacy controls was raised.

In a report to council by one of its Specialist Planners on 26 July 1995, the planner expressed concerns based on general amenity considerations. She expressed the opinion that the application was able to satisfy the main controls under SREP 26 and the UDP and the draft UDP 1995 Update. Concern was raised that the development will have adverse effects on future residents in the development and on existing adjoining residents, the majority of whom indicate that they do not want the block redeveloped. A recommendation was made that the applicant be advised that the building envelope should be amended by setting the building back eight metres from level 5. This appeared to an ad hoc adjustment which leaves the first four floor levels intact but with the profound effect that the size of the development would be reduced by approximately one third. It is difficult to appreciate what the amendment could achieve in terms of the amenity of the open space within the subject site or the prospect for overlooking adjoining terraces.

The evidence of Mr Kerr suggests that a 45E plane control should be projected from a point 1.6 metres above the rear boundary. The effect of this control would be even more dramatic than the amendment suggested by the Specialist Planner in July. The Court agrees with the applicant that the approach by Mr Kerr is also unlikely to provide any benefit in real terms because the main impact on privacy and amenity arises from the position of the lower levels of the building.

Mr Sanders went even further and suggested that the plane should be projected above the retaining wall nearest to the building within the rear garden or courtyard. His idea is not supported by Mr Kerr and was not enthusiastically embraced by Mr McEwen, who appeared for the council. Mr Sanders only argued it in the alternative. The suggestion has all the hallmarks of an after thought which appeared to be a good idea at the time. In fairness his position appears to be driven by a concern that the proposed development does not respect the existing buildings in the locality, most notably the single storey terraces located to the south and to the west of the proposal. The extent of these impacts does not justify such a drastic curtailment of the project.

Having considered all of the views expressed in evidence, the Court is satisfied that it is appropriate to assess the proposed development against the council policy after having regard to the textual description of the internal courtyard control unaided by the schematic control set out in the 1995 Update of the UDP in a different textual context.

Mr Sanders also expressed an opinion that the building should step down from north to south along Murray Street to provide a transition from the Meriton development to the restored wool store at the southern extremity of the block. The Court has decided that, to the extent that it may be justified, if at all, some step down will be achieved by the design of the Meriton development itself and by the proposal.

It was also contended for the council that a perceived step in the Murray Street facade above level 9 should be deleted to eliminate any potential for a ziggurat effect. The Court is not satisfied that the step complained of is anything more than the very minor effect of a curved roof over the balcony at level 8. In any event it is extremely unlikely that it will be discernible from any point adjacent in Murray Street although it may be observed when the building is viewed at an angle. The small projection by the balcony roof has no potential to contribute to a ziggurat effect and accordingly the condition proposed by council that the number of steps above the parapet fronting Murray Street shall be modified to comply with the street wall control is not necessary.

The Court agrees with the applicant's consultant town planner, Mr Byrnes, that the character of the area is in a state of transition and the question of appropriate form is one relative to the newer buildings to follow. That does not mean that the circumstances of existing residents should not be adequately addressed. Given the circumstances of the zoning and the aims and objectives of SREP 26, the development does pay due regard to the amenity of the outdoor areas at the rear of the adjacent terrace houses. In many cases these areas are not being used for any recreational purpose. In any event, significant vegetation at the rear of the terrace houses facing Pyrmont Street provides a canopy effect which will assist to minimise any prospect of unreasonable overlooking. The proposed excavation will be such that the open space at the rear of the building will be at least 1.4 metres below existing ground level. The levels immediately above are set back from the balconies and as the building becomes higher above, level 6, it is stepped further back from the rear boundary. In the circumstances the Court is satisfied that the levels of privacy achieved will meet reasonable expectations for this part of Sydney.

I have had the very great benefit of the assistance and advice of Assessor Hussey throughout the hearing. The evidence has been illustrated and complemented by a view of the site and its environs. After taking into account the whole of the evidence and the helpful submissions by Mr McEwen and Mr Bingham, the Court is satisfied that the application should be determined by the granting of consent, subject to conditions.

The formal orders of the Court are:

1. The appeal is upheld.

2. Development application to demolish existing terrace houses and to erect a 10 level residential development comprising 41 units and ground floor commercial space over 3 basement levels of parking be determined by granting consent subject to conditions 1, 2, 4 - 11, 12(b), 13 - 74 inclusive in Exhibit L and the following additional condition:-

3. The use of the commercial space on the ground floor shall be for business use as defined in SREP 26 - City West.

3. The exhibits except Exhibit A and L may be returned.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 9 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGEMENT HEREIN OF THE HONOURABLE JUSTICE R N TALBOT

ASSOCIATE