Land and Environment Court New South Wales

• Medium Neutral Citation: Emag Apartments Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1082
• Hearing dates: 5 - 6 May, 2014
• Decision date: 13 May 2014
• Jurisdiction: Class 1
• Before: O'Neill C

Decision

1. The appeal is dismissed.

2. Development Application No. D/2013/1357 for the demolition of the existing warehouse building and construction of a six storey mixed use development is refused.

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

• Catchwords: DEVELOPMENT APPLICATION: mixed use development; height, bulk and scale; impact on heritage significance of Chippendale Heritage Conservation Area
• Legislation Cited: Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979
• Cases Cited: Silverstar Fashions Pty Ltd v Council of the City of Sydney [2009] NSWLEC 1314
• Category: Principal judgment
• Parties: Emag Apartments Pty Ltd (Applicant); The Council of the City of Sydney (Respondent)
• Representation: Ms S Duggan SC (Applicant); Mr A Pickles Barrister (Respondent); Conomos Legal (Applicant); Council of the City of Sydney (Respondent)
• File Number(s): 10822 of 2013

Judgment

1 COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of Development Application No. D/2013/1357 for the demolition of an existing warehouse building and construction of a six storey mixed use development (the proposal) at 58-64 Abercrombie Street, Chippendale (the site), by the Council of the City of Sydney (the Council).

2 The appeal was subject to mandatory conciliation on 24 January 2014, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation conference, it was terminated pursuant to s 34(4) of the LEC Act.

Issues

3 The Council's contentions in the matter can be summarised as:

• The proposal is an overdevelopment of the site, in terms of its height, bulk and scale and the proposal will not result in a development with a high standard of architectural design; and
• The height, bulk and scale of the proposal would have an unacceptable impact on the heritage significance of the Chippendale Heritage Conservation Area (Chippendale HCA) and heritage items in the vicinity.

The site and its context

4 The site has an area of 481.2 sqm with a western frontage to Abercrombie Street of 15.37 m, a splayed corner of 4.3 m and a northern frontage to O'Connor Street of 20.76 m. The site has an access handle from Dick Street, to the south of the site. The existing warehouse building on the site is identified as detracting to the heritage significance of the Chippendale HCA (Sydney Development Control Plan 2012 [DCP 2012] Building Contributions Map 009).

5 The adjoining property to the south, 66-70 Abercrombie Street, is identified as a heritage item, 'Retail and residential terrace group including interiors' (Sydney Local Environment Plan 2012 [LEP 2012] Schedule 5, item 1158) and the property at 72-80 Abercrombie Street is identified as a heritage item, 'Warehouse "Macintosh Tyres and Co" including interiors' (LEP 2012 Schedule 5, item 1159).

6 The adjacent property to the east at 37-49 O'Connor Street, which extends at the rear to Dick Street, is a former warehouse building of two and three storeys which has been gutted by fire. The next property to the east at 51-63 O'Connor Street is a three storey dwelling fronting O'Connor Street and a two storey dwelling fronting Dick Street, currently under construction within a portion of the remaining shell of the former Simona warehouse building (the Simona building, exhibit D).

7 On the northern side of O'Connor Street, on the block bounded by Broadway to the north and Abercrombie Street to the west, is the Frasers Property development, 'Central Park' (the former Carlton and United Breweries' Kent Street Brewery site). There is a pedestrian 'street' through Central Park, on a north-south axis in line with Balfour Street. 'Central Park 8' is a residential flat building about to be constructed on the south-western corner of Central Park, opposite the site. Central Park 8 will consist of 8 storeys on the southern side, adjacent to O'Connor Street, stepping up to 13 storeys on the northern side (exhibit 9).

8 To the west of the site, on the opposite side of Abercrombie Street is a Victorian terrace row, on the block bounded by O'Connor Street to the north and Myrtle Street to the south. The two terrace houses at the southern end of the terrace row, at 63-67 Abercrombie Street, are identified as heritage items, 'Corner shop and terrace group "Centennial Terrace" including interiors' (LEP 2012 Schedule 5, item 1157). The rest of the terrace row is identified as contributory to the heritage significance of the Chippendale HCA (DCP 2012 Building Contributions Map 009).

9 To the north-west of the site, on the corner of Abercrombie Street and Blackfriars Street (Blackfriars building, 23 Abercrombie Street, exhibit C) is a four storey building identified as contributory to the heritage significance of the Chippendale HCA (DCP 2012 Building Contributions Map 009) with development consent to convert it to residential apartments with a roof addition of two levels, setback from the original facade on the northern side.

10 To the east of the site, on the corner of Balfour and Wellington Streets (White Rabbit building, 30 Balfour Street) is a three storey former warehouse building, identified as contributory to the heritage significance of the Chippendale HCA (DCP 2012 Building Contributions Map 009) with a contemporary roof addition setback behind the original parapet.

Background and the proposal

11 On 26 February, 2014, the Court granted leave to the applicant to rely upon amended plans and the amended plans were renotified by the Council.

12 There is an existing development consent for the site, D/2012/1133 (the existing consent), for the demolition of the existing warehouse building and construction of a four storey mixed use building, to a height of RL26.05, which is 13m high at the lowest point of the site.

13 The proposal is a six storey mixed use development with basement parking, accessed via Dick Street, consisting of the following:

• Basement Floor: 8 car parking spaces, 24 residential bicycle spaces residential waste room and retail waste room;
• Ground Floor: 135sqm retail/commercial tenancy in the north-western corner, two 2 bedroom residential units and entry to the residential foyer from O'Connor Street;
• First, Second and Third Floors: two 2 bedroom residential units and 3 studio residential apartments;
• Fourth Floor: one 2 bedroom residential unit and two 1 bedroom residential units;
• Fifth Floor: two 1 bedroom residential units.

14 The lower four levels (Ground to Third Floor) of the proposal are contained within an articulated brick facade built to the Abercrombie Street and O'Connor Street site boundaries and the upper two levels (Fourth and Fifth Floors) are located on the northern side of the site and clad in zinc and Alucobond panels, set back from the masonry facade below, so as to distinguish the upper levels as a separate element to the masonry component of the facade (exhibit A).

15 The lowest point of the existing ground level along the site boundary is at the north-western corner of the site and is RL13.03. The top of the parapet of the masonry facade enclosing the lower four levels is RL27.5, the roof of the upper two levels is RL32.7 and the top of the lift shaft is RL33.25 (exhibit A).

Planning Framework

16 The proposal is subject to the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) at cl 4(1)(a).

17 Consideration is to be given to the design quality of the residential flat component of the proposal, when evaluated in accordance with the design quality principles, at cl 30(2)(b) of SEPP 65 and the publication Residential Flat Design Code (RFDC) at cl 30(2)(c).

18 The design quality principles of SEPP 65 are at cl 7-18. The design quality principles relevant to the proposal are:

Principle 1: Context

Good design responds and contributes to its context. Context can be defined as the key natural and built features of an area.

Responding to context involves identifying the desirable elements of a location's current character or, in the case of precincts undergoing a transition, the desired future character as stated in planning and design policies. New buildings will thereby contribute to the quality and identity of the area.

Principle 2: Scale

Good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings.

Establishing an appropriate scale requires a considered response to the scale of existing development. In precincts undergoing a transition, proposed bulk and height needs to achieve the scale identified for the desired future character of the area.

Principle 3: Built Form

Good design achieves an appropriate built form for a site and the building's purpose, in terms of building alignments, proportions, building type and the manipulation of building elements.

Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook.

Principle 4: Density

Good design has a density appropriate for a site and its context, in terms of floor space yields (or number of units or residents).

Appropriate densities are sustainable and consistent with the existing density in an area or, in precincts undergoing a transition, are consistent with the stated desired future density. Sustainable densities respond to the regional context, availability of infrastructure, public transport, community facilities and environmental quality.

19 The site is zoned B4 Mixed Use and the proposal is permissible with consent, pursuant to LEP 2012. The objectives of the B4 Mixed Use zone are to provide a mixture of compatible land uses, to integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling and to ensure uses support the viability of centres.

20 The height of buildings development standard for the site is 9m. The adjacent property to the east 37-49 O'Connor Street has a height of buildings development standard of 12 m and the Simona building at 51-63 O'Connor Street has a height of buildings development standard of 15 m. The rest of the block bounded by O'Connor Street, Abercrombie Street, Dick Street and Balfour Street has a height of buildings development standard of 9 m (LEP 2012 Height of Buildings Map Sheet 009, exhibit 2, f 591).

21 The relevant objectives for the height of buildings, at cll 4.3(1)(a) and (b) of LEP 2012 are to ensure that the height of development is appropriate to the condition of the site and its context and to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas. The parties agreed the proposal either satisfies the remaining objectives or they are not relevant.

22 The site has a floor space ratio (FSR) development standard of 1.75:1 (LEP 2012 FSR Map Sheet 009, exhibit 2, f 592). The relevant objective for the FSR at cl 4.4(1)(b) is to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic.

23 Clause 4.6 of LEP 2012 'Exceptions to development standards', provides an appropriate degree of flexibility in applying certain development standards to particular development with the objective of achieving better outcomes for and from development, at subcl 4.6(1) and relevantly requires the following:

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Director-General has been obtained.

24 The site is within the Chippendale HCA (LEP 2012 Heritage Map Sheet 009, exhibit 2, f 593). Clause 5.10 of LEP 2012, 'Heritage conservation', includes the relevant objective of conserving the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views.

25 Clause 6.21(4) of LEP 2012 includes the following in relation to design excellence:

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

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

(b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain,

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

(iii) any heritage issues and streetscape constraints

(v) the bulk, massing and modulation of buildings

(vi) street frontage heights

(xi) the impact on any special character area

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

26 The proposal is subject to the provisions of DCP 2012. Section 2 of DCP 2012 includes the locality statements. The site is within the Chippendale locality, at sub-section 2.3.1 of DCP 2012 (exhibit 2, ff 577-8). According to the statement, the locality is a residential and mixed use neighbourhood with existing rows of residential terrace houses, commercial buildings and warehousing, which contributes to the legibility of the area's history and neighbourhood quality and the scale of the housing and adapted warehouse buildings is generally low to medium rise. The relevant principles for this area are:

(a) Development must achieve and satisfy the outcomes expressed in the character statement and supporting principles.

(b) Development is to respond to and complement the heritage items and contributory buildings within heritage conservation areas, including streetscape and lanes.

(c) Maintain the visual prominence and landscape setting of the Blackfriars campus, the Mortuary Station and public housing on Balfour Street, Peace, Strickland and Balfour Street Parks.

(g) Ensure infill development responds to the height, massing and predominant horizontal and vertical proportions of heritage and contributory items.

(h) Ensure the new infill buildings reinforce the predominant street frontages in terms of height, setbacks and street alignment in the eastern part of Chippendale.

(l) Protect the curtilage of heritage items to enable visual appreciation of the buildings in their setting.

27 Section 3.9 of DCP 2012 'Heritage', includes the following relevant objectives:

(a) Ensure that heritage significance is considered for heritage items, development within heritage conservation areas and development affecting archaeological sites and places of Aboriginal heritage significance.

(b) Enhance the character and heritage significance of heritage items and heritage conservation areas and ensure that infill development is designed to respond positively to the heritage character of adjoining and nearby building and features of the public domain.

28 New infill buildings with heritage conservation areas are not to be designed as a copy or replica of other buildings in the area, but are to complement the character of the heritage conservation area by sympathetically responding to topography, views, significant subdivision patters, nearby contributory items and the interface between the public domain, at 3.9.6(2) of DCP 2012.

29 Development on sites containing detracting buildings is to improve the contribution of the site within the heritage conservation area and is to respect the prevailing character of the areas and street in terms of bulk, form, scale and height, at 3.9.9(1) and (2) of DCP 2012

Public submissions

30 Four resident objectors provided evidence at the commencement of the hearing on site. Their objection to the proposal can be summarised as:

• the proposal is out of proportion with existing development on the block, including the heritage item adjacent to the site;
• using the Central Park development as a precedent is inappropriate as the Chippendale HCA excludes Central Park;
• The terrace and windows on the southern side of the proposal will overlook existing residences in Dick Street;
• there is insufficient area on Dick Street to accommodate additional garbage bins; and
• the proposal may result in overshadowing impacts on adjoining development.

Expert evidence

31 Mr Kim Jones (urban design), Mr Robert Staas (heritage) and Mr Andrew Martin provided expert evidence on behalf of the applicant.

32 Mr Tony Smith (urban design and heritage) and Ms Jessica Symons provided expert evidence on behalf of the Council.

Contravention of the maximum building height development standard

33 The experts agreed that the height of the proposal is 19.5m. The applicant provided a written request prepared by Mr Martin for the contravention of the 9m height of buildings development standard, pursuant to cl 4.6 of LEP 2012 (exhibit B, annexure B). According to the written request, it is unreasonable and unnecessary for the proposal to comply with the height of buildings development standard for the following reasons:

• the height of the proposal is required to achieve a transition in massing between the Central Park development and the Chippendale HCA, as the site is at the interface with Central Park to the north, and the height is required to unify O'Connor Street;
• the massing and resultant scale of the proposal is considered acceptable in this location having regard to the existing and future character; and
• there are no adverse amenity impacts, including overshadowing, privacy or view impacts as a result of the exceedence of the 9m height of buildings development standard.

Contravention of the FSR development standard

34 The experts agreed that the FSR of the proposal is 3.23:1. The applicant provided a written request for the contravention of the 1.75:1 FSR development standard, pursuant to cl 4.6 of LEP 2012 (exhibit B, annexure A). According to the written request prepared by Mr Martin, it is unreasonable and unnecessary for the proposal to comply with the FSR development standard for the following reasons:

• the proposal will provide additional residential units in a boutique style development which offers housing choice in the area;
• the additional floor area is located on the northern side of the proposal which provides a transition to the Central Park development to the north;
• the massing and resultant scale of the proposal is considered acceptable in this location having regard to the existing and future character;
• there is no significant increase in traffic due to the upper two levels;
• the proposal is commensurate with the capacity of existing and future infrastructure given the proximity of major transport nodes;
• the White Rabbit and Simona buildings contribute to an existing character and are well in excess of 9m high;
• there are no adverse amenity impacts, including overshadowing, privacy or view impacts as a result of the exceedence of the FSR development standard.

Height, bulk and scale of the proposal

35 The urban design experts agreed on the following:

• The proposal satisfies the B4 zone objectives in LEP 2012 (quoted at paragraph 19);
• The proposal does not have any unacceptable amenity impacts on adjoining development;
• The height, scale and massing of Central Park is substantially different to the remainder of Chippendale;
• The Chippendale locality ranges from 2 - 6 storeys and floor to floor heights of historic terraces and warehouse buildings are greater than contemporary floor to floor heights, resulting in older buildings being higher than contemporary buildings when comparing the number of storeys;
• The four storey component of the proposal is acceptable.

36 The urban design experts agreed that a transition in scale between the Central Park development and the Chippendale HCA is necessary, however they disagreed about where the transition should be accommodated.

37 According to Mr Smith, the Central Park development provides a transition between Broadway and the Chippendale HCA, as the towers of Central Park One are located on the northern side of Central Park, adjacent to Broadway and the development steps down towards O'Connor Street to the south. In his view, 'attempts to make the the proposed building relate to the scale of its massive neighbour are neither necessary nor desirable in the context of the lower, fine grained, Chippendale Locality and the Chippendale HCA. The sharp jump in scale between [the Central Park development and the Chippendale HCA] is part of [the Chippendale HCA's] significance and should be conserved.' (exhibit 3, item 32). Mr Smith notes that the difference in scale between the two sites is historic, as the former Kent Street Brewery also included very large buildings, in contrast to the Chippendale HCA and LEP 2012 seeks to maintain the difference in scale between Central Park and the Chippendale HCA and the site forms an entrance and edge to the Chippendale HCA (exhibit 3, item 37(a)).

38 According to Mr Jones, 'the principle of transitional scale is a fundamental urban design issue for properties along the entire southern edge of O'Connor Street, where it meets the Central Park precinct' (exhibit 3, item 9). In Mr Jones' opinion, the additional height of the proposal is a direct response to the corner location of the site and its interface with the substantially higher built fabric of Central Park (exhibit 3, item 37(a)). Mr Jones said in oral evidence that the character of Chippendale east of Abercrombie Street is subtly different to the character of Chippendale west of Abercrombie Street, as the eastern portion has a greater proportion of warehouses and larger scale buildings and the western portion has a greater proportion of lower scale development including terrace housing.

39 According to Ms Symons, the height, bulk and scale of the proposal does not satisfy the relevant objectives of the development standards of LEP 2012 for the following reasons:

• the proposal responds to the approved bulk and massing of Central Park 8 and does not address the context of the Chippendale HCA and the transition in height between Central Park and Chippendale is accommodated on the Central Park site and should not be accommodated within the Chippendale HCA (exhibit 5, pars 4.7 and 4.9);
• there should be a visible distinction between the Central Park site and Chippendale HCA (exhibit 5, par 4.12); and
• the upper two levels of the proposal do not provide an appropriate bulk or scale for Abercrombie or O'Connor Streets (exhibit 5, par 4.13).

Impact of the proposal on the heritage significance of the Chippendale HCA and heritage items in the vicinity of the site

40 The heritage experts agreed that the four storey component and parapet height and detail of the proposal has an acceptable impact on the heritage significance of the Chippendale HCA.

41 According to Mr Smith, O'Connor Street forms a clear north edge to this part of the Chippendale HCA and evidence of the many layers of Chippendale's evolution remains. Any infill development within the Chippendale HCA should respect the height and scale of existing contributory buildings, otherwise the clear edge between the Chippendale HCA and the Central Park site will be eroded. The proposal is two storeys higher than any other building on the southern side of O'Connor Street and while the Chippendale HCA does include buildings of different heights, including a number of large 19th century warehouses of five to six storeys, it does not follow that all subsequent development in Chippendale can match their height, as infill development should be appropriately deferential to the landmark presence of the historic warehouses. (exhibit 4, pp 7-8).

42 According to Mr Staas, one cannot ignore the massive scale relationship between the site and the development along Abercrombie Street and Central Park. The proposal cannot blend the Chippendale HCA with the scale and character of Central Park, however it does provide an appropriate transition between those developments and the mixed character of the eastern side of Abercrombie Street, which contains a wide variety of scale. In his view, the proposal does not destroy any significant edge between Central Park and the streetscape of Abercrombie Street, but acts as an appropriate transition between the two and appropriately addresses the corner context. The design is an appropriate contemporary infill building and has appropriately responded to the historic context (exhibit 4, pp 8, 13).

Submissions

43 Ms Duggan submitted that the Senior Commissioner's decision in Silverstar Fashions Pty ltd v Council of the City of Sydney [2009] NSWLEC 1314 (Silverstar) is a relevant consideration, as Silverstar dealt with a similar issue of an infill building between a three storey building and a seven storey building both identified as contributory items within the Chippendale HCA and the proposal exceeded the relevant development controls for the site.

Findings

44 I accept the agreement of the experts that the four storey component of the proposal is appropriate and that the dispute between the parties in regard to the height, bulk and scale of the proposal and its impact on the heritage significance of the Chippendale HCA centres on whether or not the two additional levels are acceptable.

Contravention of development standards

45 In order for development consent to be granted for a development that contravenes a development standard in LEP 2012, I must be satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2012) and that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2012) and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2012).

46 I accept the agreement of the urban design/planning experts that the proposal is consistent with the objectives for development within the B2 Mixed Use zone and that there are no adverse amenity impacts as a result of the exceedence of the development standards.

Building height

47 The relevant objectives for the height of buildings development standard, at cll 4.3(1)(a) and (b) of LEP 2012, are to ensure that the height of development is appropriate to the condition of the site and its context and to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas.

48 In order to evaluate whether the height of the proposal is appropriate to the condition of the site and its context and provides an appropriate height transitions to heritage items in the vicinity of the site and buildings in the Chippendale HCA, it is necessary to consider the merits of the application.

49 The first of the applicant's justifications for the height of the proposal is that it is required to achieve a transition in massing between the Central Park development and Chippendale HCA and to unify O'Connor Street, as the site is at the interface of the Chippendale HCA with Central Park.

50 I prefer and adopt Mr Smith's evidence in regard to the appropriate location for a transition between the scale of Central Park and the Chippendale HCA. It is not simply the height of the development at Central Park that should be considered, it is fundamentally the figure-ground relationship of the buildings to open space on Central Park that distinguishes Central Park from the Chippendale HCA. Central Park consists of grand scale urban spaces and large buildings with substantial footprints. Chippendale HCA, in stark contrast, is a relatively small scaled urban precinct, that is 'fine grained', with small footprints and historic facades with intricate detailing, intermingled with contemporary infill, that reinforce the street walls. It is not appropriate to compare the heights of the buildings within the Chippendale HCA, even along the edge of the HCA, with the development at Central Park, because the scale of the two precincts is completely different and the division between them, along Abercrombie and O'Connor Streets, creates a clearly distinguishable edge between old and new, between the multilayered historic, inner-city urban precinct of Chippendale and the dramatic redevelopment of a massive inner-city former industrial site.

51 The northern elevation of O'Connor Street, on the block bounded by Balfour Street to the east and Abercrombie Street to the west, consists of the following, from east to west:

• two storey terrace housing row (not identified as contributory with the Chippendale HCA);
• the Simona building, which when completed will consist of a contemporary facade at RL29.62 fronting O'Connor Street, which is 14.5m high above ground level (exhibit D);
• a former warehouse building of two to three storeys which has been gutted by fire and is likely to be redeveloped in the future, with a maximum height of 12m and FSR 1.75:1; and
• the site, with the proposed height of RL32.70, which is 19.5m above the ground level.

52 I do not accept that the height of the proposal unifies O'Connor Street. The proposal would result in the site containing the highest building on the block bounded by O'Connor Street, Abercrombie Street, Dick Street and Balfour Street, as the proposal is 5m higher above ground level than the Simona building, when viewed from O'Connor Street. While there are taller buildings in the vicinity of the site, they are, as Mr Smith noted, adaptively reused warehouse buildings with sympathetic contemporary roof additions and identified as contributory to the heritage significance of the Chippendale HCA. Importantly, these landmark buildings do not provide a precedent for the height of infill development, as infill buildings should be appropriately respectful and deferential to the height and scale of heritage items and buildings identified as being contributory to the heritage significance of the Chippendale HCA.

53 The second of the applicant's justifications for the height of the proposal is that the massing and resultant scale of the proposal is considered acceptable in this location having regard to the existing and future character.

54 I accept and agree with Mr Jones' evidence that the character of the eastern side of the Chippendale HCA differs to that on the western side of Abercrombie Street, as the eastern side has a greater proportion of warehouses and larger scale buildings.

55 Council's position is that it is reasonable for a proposal on this site to be greater in height than the height of buildings development standard of 9m (as the existing consent is for a building height of 13m and the height of the top of the parapet of the four storey masonry facade of the proposal is 14m), however not to the extent of the height of the proposal.

56 The Simona building will appear as a new, infill building, as the retained fabric is the facade of the former building at the sides and rear of the site. The existing warehouse building on the adjacent property at 37-49 O'Connor Street is likely to be redeveloped, due to its derelict condition.

57 Council's experts' evidence was that the 9m height of buildings development standard for the site, when compared to the 15m for the Simona building and 12m for 37-49 O'Connor Street, is a response to the need to reduce the scale of the block on the western side to relate to the two storeyed, terrace housing row on the opposite side of Abercrombie Street and the heritage item to the rear of the site. However, as Council's position is that a building height of 14m is acceptable, it follows that it would be reasonable for the two properties to the west of the Simona building on O'Connor Street, 37-49 O'Connor Street and the site, like the Simona building, also being future infill buildings with the Chippendale HCA, to match the 14.5m height of the Simona building at the O'Connor Street facade, with a transition on the Abercrombie elevation to the heritage item at 66-70 Abercrombie Street. In my view, the height of the redeveloped Simona building and the future redevelopment of 37-49 O'Connor Street is the only 'future character' consideration relevant to this matter in terms of the height of a building on the site. The reality is that the future character of the Chippendale HCA is fundamentally dictated by the heritage items and contributory items existing within the locality.

58 While I accept that it is unnecessary in the circumstances for the proposal to comply with the height of buildings development standard, on the basis of Council's position that a 14m high development is acceptable on the site, the height of the proposal is not consistent with the relevant objectives for the height of buildings development standard because the height of the proposal is not appropriate to the conditions of the site and its context and it does not ensure an appropriate height transition between new development and heritage items and contributory items within the Chippendale HCA. I am not satisfied that the applicant's written request for the contravention of the height of buildings development standard has adequately justified the height of the proposal, as the height of the proposal is not required to achieve a transition in massing between the Central Park development and the Chippendale HCA and the scale of the proposal is not acceptable in this location, as it is not appropriately respectful and deferential to the historic context of the Chippendale HCA.

FSR

59 The relevant objective for the maximum floor space ratio at cl 4.4(1)(b) is to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic.

60 I accept the applicant's justifications and the Council's experts' agreement that the proposal, as a result of the additional floor space, will provide additional residential units, will not result in a significant increase in traffic, is commensuarate with the capacity of existing and future infrastructure and has no adverse amenity impacts.

61 However, for reasons set out above in relation to the contravention of the height of buildings development standard, I do not accept the applicant's justifications that the additional floor space will provide a transition to the Central Park development to the north, that the the massing and resultant scale of the proposal is acceptable in this location having regard to the existing and future charater and that the White Rabbit building and Simona building contribute to an existing character which justifies the scale of the proposal.

62 The White Rabbit building is identified as a contributory item within the Chippendale HCA and is a landmark buildings within the Chippendale HCA. For the reasons set out at paragraph 52 of the judgment, it is inappropriate to use the height of the White Rabbit building as a justification for the height of an infill building. The proposal is 5m higher than the Simona building when comparing the O'Connor Street elevations, so the Simona building cannot be used as a justification for the height and consequent additional floor space of the proposal.

63 While I accept that it is unnecessary in the circumstances for the proposal to comply with the FSR development standard, on the basis of the agreement of Council that the four storey component of the proposal is acceptable and in view of the existing consent for a four storey building on the site, the FSR of the proposal is not consistent with the relevant objective for the FSR development standard, to regulate the density and built form of the proposal. I am not satisfied that the applicant's written request for the contravention of the 1.75:1 FSR development standard has adequately justified the FSR of the proposal, as the additional floor space is not required to achieve a transition in massing between the Central Park development and the Chippendale HCA and the scale of the proposal is not acceptable in this location, as it is not appropriately deferential to the historic context of the Chippendale HCA.

Silverstar

64 The Senior Commissioner's decision in Silverstar is not a relevant consideration, for the following reasons:

• The site in Silverstar was located between and directly adjacent to two contributory buildings of a different height and the infill building in Silverstar transitioned in height between the two buildings. The dispute in this matter relates to the scale of the Central Park development on the opposite side of O'Connor Street;
• This site is on the boundary of the Chippendale HCA and this forms part of the applicant's justification for the proposal's transitory form between Central Park and the Chippendale HCA; and
• The parties in Silverstar had come close to an agreed position in regard to an alternative proposal, which was granted consent following the preparation of amended documentation (Silverstar pars 17, 71).

Conclusion

65 In view of the existing consent for a four storey building on the site and given Council's position that the four storey component of the proposal is acceptable, it is unnecessary in the circumstances for the proposal to comply with the height of buildings and FSR development standards for the site.

66 However, the height and FSR of the proposal are not consistent with the relevant objectives for the height of buildings and FSR development standards, for the height of development to be appropriate to the condition of the site and its context, to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas and to regulate the density and built form of development.

67 For the reasons set out in the judgment, I am not satisfied that the applicant's written request for the contravention of the height of buildings and FSR development standards has adequately justified the height and FSR of the proposal, as the proposal is not required to achieve a transition in massing between the Central Park development and the Chippendale HCA and the scale of the proposal is not acceptable in this location, as it is not appropriately respectful and deferential to the historic context of the Chippendale HCA and consequently, the application should be refused.

Orders

68 The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. D/2013/1357 for demolition of the existing warehouse and construction of a six storey mixed use development is refused.

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

Susan O'Neill

Commissioner of the Court

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Decision last updated: 13 May 2014