278 Palmer St Pty Ltd v The Council of the City of Sydney

[2021] NSWLEC 1695

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

278 Palmer St Pty Ltd v The Council of the City of Sydney [2021] NSWLEC 1695

Hearing dates:

13 October 2021

Date of orders:

19 November 2021

Decision date:

19 November 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application D/2020/628 for alterations and additions to an existing two-storey building at 278 Palmer Street, Darlinghurst, subject to conditions in Annexure A.

(3) All exhibits are returned, except for A, B, G, K, L and P.

Catchwords:

DEVELOPMENT APPLICATION – residential apartment development – adaptive reuse – impact on heritage conservation area – residential flat building – State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development – consideration of public submissions

Legislation Cited:

Architects Act 2003, s 28

Environmental Planning and Assessment Act 1979, ss 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cll 3, 50, 55

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cll 28, 30

Sydney Local Environmental Plan 2012, cll 4.3, 5.10

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide, (July 2015)

Category:

Principal judgment

Parties:

278 Palmer St Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
S Berverling (Respondent)

Solicitors:
Alice Spizzo Advisory (Applicant)
The Council for the City of Sydney (Respondent)

File Number(s):

2020/349083

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by the Council of the City of Sydney (the Respondent), of Development Application D/2020/628 seeking consent for alterations and additions to an existing two-storey building at 278 Palmer Street, Darlinghurst (the site).

2. On 12 August 2021, the Applicant, with the agreement of the Respondent, amended the application.

3. By Notice of Motion, the Applicant sought to further amend the application before the Court at the commencement of the hearing, to which the Respondent provided its agreement in accordance with cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

4. The amendment, and its supporting documentation, comprises:

1. Amended architectural plans, marked Exhibit A

2. Amended BASIX certificate, (Exhibit B) and NatHERS assessment (Exhibit C)

3. Amended ESD Report (Exhibit D)

4. Updated design statement (Exhibit E)

5. Construction Management Plan (Exhibit F)

6. Structural Engineering Report (Exhibit G)

7. Addendum to the Heritage Impact Statement, and supplementary heritage analysis & advice (Exhibit H)

5. The Court directed the Applicant to lodge the amended application on the NSW Planning Portal within 7 days and, on 14 October 2021, the Court received confirmation that lodgement had been effected.

6. It is commonly held that while the amendments to the application substantially resolve the contentions underlying the dispute, the amendments are considered minor for the purposes of s 8.15(3) of the EPA Act.

The site and its context

7. The site is on the eastern side of Palmer Street, close to the intersection of Burton Street, and having a rear frontage to Sherbrooke Street.

8. The site is legally described as Lot 1 in DP 1223833, and is 318.5m² in area.

9. The site is currently occupied by an existing building identified by the Respondent as a two-storey former warehouse building that is greater than 50 years of age.

10. While residential uses predominate in the immediate vicinity, the site is located opposite the Eternity Playhouse on Palmer Street, and close to the East Sydney Community and Arts Centre on Burton Street.

11. The site is located within the R1 General Residential zone under the Sydney Local Environmental Plan 2012 (SLEP), in which residential flat buildings are permitted with consent, where consistent with the objectives for development in the zone as follows:

•  To provide for the housing needs of the community.

•  To provide for a variety of housing types and densities.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To maintain the existing land use pattern of predominantly residential uses.

12. The site is also within the area described by the locality statement at Section 2.4.9 of the Sydney Development Control Plan 2012 (SDCP) as East Sydney.

The contentions

13. The background facts and contentions in this matter, as identified by the Respondent following the amendment of the application in August 2021, are set out in the Amended Statement of Facts and Contentions (Exhibit 2).

14. At the commencement of the hearing, the Respondent tendered joint expert reports prepared by the following experts:

• For the Applicant: Ms Gabrielle Morrish (urban design), Mr Lee Kosnetter (planning), and Ms Kerime Danis (heritage).

• For the Respondent: Ms Julia Pressick (urban design), Ms Vanessa Cagliostro (planning) and Ms Priyanka Misra (heritage).

15. The experts in urban design and planning jointly conferred to prepare the joint expert report marked Exhibit 3, and the heritage experts conferred in the preparation of Exhibit 4.

16. Relevantly to the proceedings, the experts record agreement on all contentions identified in Exhibit 2. Accordingly, the parties did not seek to adduce oral evidence from the experts.

17. That said, the Respondent identifies the keen public interest in the proposed development measured by the number of objections contained in the Respondent’s bundle (Exhibit 1), and submits that it is for the Court to determine the matter on the basis of the written evidence of the experts, and the submissions received in response to notification of the original development application, and the application as amended at [2] that was notified on 26 August 2021.

18. Public submissions are distilled by the Respondent into the following categories:

• Heritage impacts;

• Overshadowing, loss of solar access and sky views;

• Height of development;

• Loss of amenity;

• Concern over basement excavation and structural concerns;

• Structural damage/impacts to adjoining terraces;

• Fourth storey out of character with existing streetscape;

• Overdevelopment of the site;

• Privacy impacts;

• Number of units facing narrow Sherbrooke Street; and

• Parking.

The effect of the proposed development on the heritage conservation area

19. The site is located within the East Sydney Heritage Conservation Area (East Sydney HCA), identified in Sch 5 of the SLEP. Accordingly, cl. 5.10 of SLEP 2012 applies and subcl (4) relevantly provides:

(4) Effect of proposed development on heritage significance

The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned…

20. The Statement of Significance for the East Sydney HCA is in the following terms:

“The East Sydney Conservation Area has historic and aesthetic significance for its ability to demonstrate the development of an inner city suburb during the mid to late nineteenth century, with later overlay. The area demonstrates the predominately small lot subdivision, along a grid pattern based on Darlinghurst Road and Oxford Street, that followed the subdivision of the Riley Estate in the 1840a and the incremental subdivision of the Darlinghurst villa estates during the second half of the nineteenth century. This pattern of subdivision, and the predominately terraced housing that developed from it, reflects the rapid population growth in Sydney particularly during the interwar period 1850 to 1900.

Development related to institutions as well as residential flat development during the interwar period (c. 1919-1940) is also demonstrated. The topography and dense urban form of the area create a strong sense of place and significant district vistas from higher areas.

The area contains a number of aesthetically significant and prominent buildings such as the former St Peters Church, Burton Street Tabernacle, former Palmer Street Presbyterian Church Group, Caritas House and the former Darlinghurst Police Station, as well as a number of fine terraces and inter-war residential flat buildings.

The area has significance for the important institutions that are found within it including SCEGGS Darlinghurst.”

21. The SDCP has specific controls for heritage conservation areas at Section 3.9.6, and relevantly provides:

“(1) Development within a heritage conservation area is to be compatible with the surrounding built form and urban pattern by addressing the heritage conservation area statement of significance and responding sympathetically to:

(a) topography and landscape;

(b) views to and from the site;

(c) significant subdivision patterns and layout, and front and side setbacks;

(d) the type, siting, form, height, bulk, roofscape, scale, materials and details of adjoining or nearby contributory buildings;

(e) the interface between the public domain and building alignments and property boundaries; and

(f) colour schemes that have a hue and tonal relationship with traditional colour schemes.

…”

22. The existing building on the subject site is identified on the Building contributions map as being a contributory building. Where alterations and additions are proposed to contributory buildings, Section 3.9.7 of the SDCP provides, relevantly:

“…

(3) Alterations and additions to a contributory building are to:

(a) respect significant original or characteristic built form;

(b) respect significant traditional or characteristic subdivision patterns;

(c) retain significant fabric;

(d) retain, and where possible reinstate, significant features and building elements, including but not limited to original balconies and verandahs, fences, chimneys, joinery and shop front detailing;

(e) remove unsympathetic alterations and additions, including inappropriate building elements;

(f) use appropriate materials, finishes and colours; and

(g) respect the pattern, style and dimensions of original windows and doors.

(4) Where an addition to the building is proposed, significant external elements are to be reinstated

…”

23. The existing building is also defined at Section 3.10.1 of the SDCP as a Significant Architectural Building Type as it is a Warehouse and Industrial building older than 50 years of age. The objectives of the provisions are:

“(a) Conserve warehouse and industrial buildings older than 50 years and ensure that alterations, additions and adaptive re-use maintain the legibility of the historic use.

(b) Encourage the conservation of existing warehouse buildings and fabric and ensure that alterations and additions are sympathetic in scale and style to the existing building.”

24. The controls at Section 3.10.1: Warehouses and industrial buildings older than 50 years are:

“(1) Alterations and additions are to be supported by a report, prepared by a suitably qualified and practising engineer, certifying that the works will not jeopardise the structural integrity of the building.

(2) Alterations and additions are to maintain significant fabric and building elements.

(3) A proposed change of use must not compromise the significant fabric and building elements.

(4) A proposed increase in floor space outside the existing building envelope is not permitted where it would compromise the significant fabric and building elements.

(5) The provision of car parking within the existing building is not an acceptable justification for creating additional storeys above the height of the existing roof.

(6) Where scope exists for a roof addition, it is to be complementary to, rather than dominate the original building; be simple in form; and able to be distinguished as new work.

(7) Additional storeys or roof additions must not result in the removal of the original roof structure where that roof is an essential component of the original building form.

(6) Where scope exists for a roof addition, it is to be complementary to, rather than dominate the original building; be simple in form; and able to be distinguished as new work.

(8) Alterations and additions are to:

(a) retain the essential geometric form of the existing building when viewed from the public domain; and

(b) complement the materials and articulation of existing façade elevations, including distinguishing features that occur at regular intervals.

(9) The original or significant pattern of windows and openings is to be retained.

(10) All original window frames, sashes and lights are to be retained on prominent elevations and on secondary elevations where considered critical to the significance of the building.

(11) Work to the facade is to:

(a) retain original and significant elements and finishes including catheads, hoists and face brick detailing;

(b) reinstate or restore missing original elements;

(c) remove detracting elements;

(d) minimise new elements; and

(e) not obscure original elements.

(12) Street level doors, gates or grilles should, where possible be set back a minimum of 200mm from the external face of the building, if not, detailed in a manner that makes them recessive.

(13) External awnings, hoods and other overhanging devices are not to be attached to the building façades where they detract from the overall building form.

(14) Face brick and sandstone must not be rendered, painted or otherwise coated.

(15) Existing floor levels are to be maintained. Mezzanine or loft areas may be acceptable where they have minimal heritage impact, including on any significant structure and significant views into the interior.

(16) Any internal subdivision and change to the layout of floor areas such as the creation new units, is to respect the existing pattern of windows and openings and have minimal heritage impact including on significant structure and views into the interior.

(17) Significant original elements, fabric and features that are characteristic of the former use of the building are to be:

(a) retained;

(b) generally not obscured by new elements; and

(c) where retained, be adapted to meet contemporary needs or safety standards, alterations must be reversible and minimal, where possible.

(18) Active street frontages in the form of a retail or studio space are encouraged to help screen visible car park levels and ventilation openings. Detracting blank street walls are to be avoided at street level.

(19) Active frontages are to be integrated into the existing fabric to ensure that entrances and display windows do not alter the regularity of façade elements or compromise the external appearance.

(20) Where existing or amalgamated sites contain significant buildings of a different character, form, size and finish which reflect former uses, this difference is to be retained.

(21) Existing painted signs that relate to the history of the building, or to the surrounding area are to be retained and kept visible where possible.

(22) Development proposals that relate to warehouse and industrial buildings with courtyards are to:

(a) retain the courtyard at its existing size, with:

(i) the buildings defining the courtyard and opening onto the courtyard at all levels; and

(ii) the courtyard remaining open to sky (although a glazed roof structure may be acceptable if it does not obscure views in and out);

(b) maximise opportunities for active uses within the buildings defining the courtyard and within the courtyard itself; and

(c) preserve original vertically aligned openings to the courtyard and replace later unsympathetic openings with reconstructed original or similarly proportioned openings.”

25. In support of the development application, the Applicant relies upon the following heritage assessments, prepared by Ms Kerime Danis:

• Heritage Impact Statement, dated 17 April 2020, marked Exhibit U.

• Addendum Heritage Impact Statement dated 21 June 2021 and supplementary heritage analysis and advice dated 29 July 2021, in response to requests from the Respondent, marked Exhibit H.

26. The heritage experts agree that amendments contained in the architectural plans now maintain the legibility of the historic use and conserve the existing warehouse building fabric, consistent with Section 3.10 of the SDCP by the repair, retention and/or reinstatement of:

1. the one original roof truss evident in Section AA on Dwg DA-204 (Exhibit A);

2. original timber windows, windowsills, and parapet features;

3. the warehouse hoist to be installed above the proposed balcony fronting Palmer Street; and

4. the historic shopfront, in the form of a contemporary interpretation.

27. Amendments now incorporated into the architectural plans also include a 2.5m setback to the upper levels fronting Palmer Street, and the deletion of visible fire protection screens.

28. Similarly, a 2.5m setback is now evident in the upper level fronting Sherbrooke Street. Dormer windows have also been deleted, replaced by recessed roof windows.

29. When understood as a whole, the heritage experts agree that the proposed development now presents a two-storey street wall to Sherbrooke Street that is compatible with the surrounding built form in accordance with Section 3.9.6 of the SDCP.

30. This is partly achieved by the setback and configuration of the uppermost floor that the heritage experts agree may be defined as an attic and so achieve the three-storey height control.

31. Section 4.2.1 of the SDCP addresses Height in storeys and street frontage height in storeys, to which the following applies, at Section 4.2.1.1:

“Definitions

A storey is the space between a floor and the next floor level above. It does not include an attic, a mezzanine or a space that contains only a lift shaft, stairway or meter room.

Street frontage height in storeys is the vertical height the part of the building closest to the street boundary.

Objectives

Objective (a) Ensure the height in storeys and street frontage height in storeys reinforces the existing or future neighbourhood character.

Provisions

(1) Development must not exceed the maximum number of storeys as shown in the Building height in storeys map.

(2) The maximum may only be achieved where it can be demonstrated that the proposed development:

(a) reinforces the neighbourhood character;

(b) is consistent with the scale and form of surrounding buildings in heritage conservation areas; and

(c) does not detract from the character and significance of the existing building.”

32. The planning and urban design experts also agree that the form presented by the uppermost story fronting Sherbrooke Street, while a departure from the strict interpretation of an attic, has the effect of minimising overshadowing to terraces in the immediate vicinity of the site, and is acceptable.

33. In support of amendments to the uppermost floor to achieve consistency with the street wall height in Sherbrooke Street, the planning and urban design experts also identify changes to fire protection and visual privacy screens, and to balustrades that are considered acceptable in the context of achieving adaptive reuse of the existing building. These amendments are attached to the joint expert report at Exhibit 3, and are incorporated in the architectural plans at Exhibit A.

34. Amendments to the openings in the facade fronting Sherbrooke Street are agreed to now conform to Section 3.9.7 of the SDCP. In particular, the reinstatement of original windows, reuse of salvaged fabric and proposed detailing are responsive to the concerns of the Respondent’s heritage expert.

35. Likewise, the use of recycled bricks in the reconstruction of the northern boundary wall is agreed by the exerts to significantly reduce the visibility of the proposed works and maintain heritage fabric.

32. As a result of the amendments described above, the heritage experts agree that the proposed development maintains and enhances the contributory values of the existing building and is now consistent with the locality statement for East Sydney at Section 2.4.9 of the SDCP.

33. On the basis of the agreement of the heritage experts, the detailed response to the Respondent’s request for information contained in Exhibit H, and the analysis evident in the structural engineering methodology at Attachment A, Exhibit H, also tendered as Exhibit G, I consider the effect of the proposed development on the East Sydney HCA to be acceptable in accordance with cl 5.10 of the SLEP.

34. In arriving at this conclusion, I also note that the basis of agreement between the heritage experts is also reflected in a number of conditions contained within the draft without prejudice conditions of consent, including provision for the works to be monitored and reviewed by a suitably qualified heritage consultant.

The design quality of the development is acceptable

39. The proposed development, as amended, is for seven units within a residential flat building. As such, the provisions of the State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) apply.

40. Clause 28 of SEPP 65 requires, at subcl (2), a consent authority, or the Court on appeal, to take into consideration the following:

(a) the advice (if any) obtained from the design review panel, and

(b) the design quality of the development when evaluated in accordance with the design quality principles, and

(c) the Apartment Design Guide.

41. Clause 30 of SEPP 65 contains standards that, if achieved, cannot be used as grounds to refuse development consent and precludes the grant of consent, at subcl (2), if the development does not demonstrate that adequate regard has been given to the design quality principles, and the objectives specified in the Apartment Design Guide (ADG) for the relevant design criteria.

42. Advice from a design review panel is not before the Court. However, the Respondent contends the proposed development is contrary to Principle 6 of the design quality principles.

43. Principle 6 is in the following terms:

“Principle 6: Amenity

Good design positively influences internal and external amenity for residents and neighbours. Achieving good amenity contributes to positive living environments and resident well being.

Good amenity combines appropriate room dimensions and shapes, access to sunlight, natural ventilation, outlook, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas and ease of access for all age groups and degrees of mobility. (Schedule 1, SEPP 65).”

44. In broad terms, the planning and urban design experts consider the guidance at design objective 4R-2 of the ADG to be applicable in the circumstances of this case.

45. Objective 4R-2 is in the following terms:

“Some proposals that adapt existing buildings may not be able to achieve all of the design criteria in this Apartment Design Guide. Where developments are unable to achieve the design criteria, alternatives could be considered in the following areas:

• where there are existing higher ceilings, depths of habitable rooms could increase subject to demonstrating access to natural ventilation, cross ventilation (when applicable) and solar and daylight access (see also sections 4A Solar and daylight access and 4B Natural ventilation)

• alternatives to providing deep soil where less than the minimum requirement is currently available on the site

• building and visual separation – subject to demonstrating alternative design approaches to achieving privacy

• common circulation

• car parking

• alternative approaches to private open space and balconies”

46. The experts acknowledge that design decisions have been informed by adaptive reuse and not all apartments achieve the quantum of private open space required in the design criteria at Part 4E of the ADG. However, any deficiency is offset by the amenity provided by common facilities at the ground floor.

47. Similarly, the dimensions of the internal courtyard to the south of the site do not achieve the separation required in the design criteria at Part 3F of the ADG. However, the experts agree that addition of privacy screens and the planting of a substantial tree in the courtyard can achieve an acceptable level of visual privacy, while also contributing to the tree canopy coverage sought by Section 3.5.2 of the SDCP.

48. To the extent that a deficiency in separation results in overshadowing to adjacent properties to the south and east of the site, the experts agree that the overshadowing results from a compliant envelope but that the deletion of dormer windows to Sherbrooke Street permit solar access to windows on the property to the eastern side of Sherbrooke Street, known as Nos 49-61 Burton Street.

49. I note a number of public submissions identify the loss of sunlight to balconies and windows at Nos 49-61 Burton Street to be a significant concern.

50. It is relevant to record here that the height of buildings development standard applicable to the site at cl 4.3 of the SLEP is 12m, and the proposed development is substantially within that height.

51. The experts identify the east-west orientation of the site as a factor in the overshadowing of adjacent properties, and conclude that the proposed development is acceptable when the provisions of solar access at Section 4.2.3 of the SDCP are considered.

52. A note at the introduction to cl 28 of SEPP 65 draws attention to certain provisions in the EPA Regulation, including those at cl 50.

53. A design statement, prepared by a qualified designer, is a requirement of subcl 50(1A) of the EPA Regulation, in the form set out at cl 50(1AB).

54. A design statement prepared by Mr Danilo Astudillo Silva accompanied the original development application, and an undated amended design statement, contained in the Notice of Motion was marked Exhibit E.

55. In the course of proceedings, certain inaccuracies were identified in the design statement, including advice that its author may not meet the definition of ‘qualified designer’ at cl 3 of the EPA Regulation of a qualified designer, being a person registered as an architect in accordance with the Architects Act 2003.

56. The Applicant submits that as a complying design statement dated 9 July 2020 accompanied the original development application, the requirements of cl 50 of the EPA Regulation are met, but a corrected and complying design statement could be prepared within 21 days.

57. I directed the Applicant to file and serve a corrected and complying design statement prepared by Mr Danilo Astudillo Silva in accordance with cl 50(1AB) of the EPA Regulation within 21 days.

58. On the 3 November 2021, the Applicant complied with the Court’s directions, relevantly providing a design statement signed by Mr Silva, and a statement of currency, issued by the NSW Architects Registration Board, confirming current registration as an architect in accordance with s 28 of the Architects Act 2003 so as to meet the definition at cl 3 of the EPA Regulation.

59. Accordingly, I am assisted by the agreement of the experts, and the design statement in finding that adequate regard has been given to the design quality principles and the objectives in the ADG as required by cl 30(2) of SEPP 65.

The proposed development exhibits design excellence

60. As the proposal is for external alterations of a building to which the SLEP applies, cl 6.21 of the SLEP requires that development consent not be granted unless, in the opinion of the consent authority, or the Court on appeal, the proposed development exhibits design excellence (subcl (3)).

61. Matters to which the Court must have regard are set out in subcl (4) as follows:

(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,

(c)  whether the proposed development detrimentally impacts on view corridors,

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

(i)  the suitability of the land for development,

(ii)  the existing and proposed uses and use mix,

(iii)  any heritage issues and streetscape constraints,

(iv)  the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,

(v)  the bulk, massing and modulation of buildings,

(vi)  street frontage heights,

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

(viii)  the achievement of the principles of ecologically sustainable development,

(ix)  pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network,

(x)  the impact on, and any proposed improvements to, the public domain,

(xi)  the impact on any special character area,

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

(xiii)  excellence and integration of landscape design.

62. For the reasons that follow, I am satisfied that the proposed development exhibits design excellence:

1. Firstly, I give considerable weight to the comprehensive agreement of the experts in heritage, planning and urban design that results from amendments documented and recorded in the joint expert reports. Those amendments range from questions of bulk, massing and streetscape to matters of discrete and arcane detail such as the acceptable dimension of shadow indentations to window joinery in a heritage context.

2. Secondly, for the reasons set out at [26]-[39] of this decision, I find the effect of the proposed development is acceptable in the context of the East Sydney HCA and, in the case of Sherbrooke Street, result in an improved streetscape.

3. Thirdly, as stated at [59], I am satisfied that adequate regard has been given to the design quality principles at Sch 1 of SEPP 65, and to the relevant objectives in the ADG.

4. Fourthly, on the basis of the ESD report, prepared by BCA Sustainable Design Consultants dated 8 October 2021 (Exhibit D), the BASIX Certificate (Exhibit B) and NatHERS Certificate (Exhibit C), I consider the proposed development addresses environmental impact through environmentally sustainable design, and to achieve the principles of ecologically sustainable development.

5. Fifthly, on careful review of the architectural drawings at Exhibit A, and the Acoustic Assessment prepared by Renzo Tonin & Associates dated 5 December 2017 (Exhibit T), and the proposed conditions of consent (Exhibit 5), I accept regard has been had to achieving acoustic privacy, both the units within the development and to external emission of noise from the development.

6. Finally, I accept the extent of deep soil and canopy tree to be provided is an appropriate integration of landscape design within a dense urban context.

Public submissions

63. A number of submissions have been prepared from residents of Nos 49-61 Burton Street. As stated at [49], amendments to the proposal permit greater solar access to windows in upper level units of the property and the greater setback of the uppermost level relieves the Sherbrooke Street façade of visible bulk above the existing parapet line when viewed from Sherbrooke Street, and will not be perceived as a four-storey building.

64. It is also relevant to state here that the height of the proposed development is substantially within the 12m height permitted by the relevant planning controls.

65. Risk of damage to property from excavation on the site and the cost of any required rectification works is also a common aspect of submissions that I consider to be mitigated by the following:

1. Excavation for the proposed basement is set off the boundary. To the north, this offset is just 150mm, and is 1.8m to the south. On the basis of two bore holes, drilled to a depth of 6m and two test pits excavated to a depth of 250mm-350mm, the Geotechnical Report (Exhibit L) includes recommendations for excavation support and drainage of groundwater seepage, and the bearing pressure of sandstone expected to be encountered on the site.

2. Structural advice has been prepared on the basis of the above, including a Construction Management Plan (Exhibit F), Structural Engineering Report (Exhibit G), and Structural Engineering Feasibility Report (Exhibit K). The structural design is to be independent of existing party walls so that no additional loads will be imposed on adjoining properties. Additionally, an attachment to the addendum heritage impact statement at Exhibit H provides a structural engineering methodology and details prepared by Partridge dated 21 June 2021 including:

• Method for excavation and temporary support of buildings.

• Risk and mitigation to adjoining structures by the vertical sawing of rock prior to breaking to reduce vibration transmission.

• Stabilisation of existing fabric on site.

3. Conditions of consent require two dilapidation reports to be completed to the properties listed below. The first is to occur prior to excavation works commencing, and the second is to be completed at least one month after the completion of demolition/excavation works:

• 43 Burton Street and

• 45 Burton Street,

• 276 Palmer Street and

• 280 Palmer Street and

• 5 Sherbrooke Street

66. A number of submissions consider the proposed development will exacerbate the demand for parking in an area where on-street parking is already difficult to find. The planning and urban design experts identify that parking is not a requirement of development under the SDCP, however the area is well served by bicycle infrastructure and all units in the development are provided with bicycle storage.

Jurisdictional preconditions to the grant of consent

67. Clause 7 of the State Environmental Planning Policy No 55—Remediation of Land requires a consent authority to consider whether the land is contaminated and requires remediation. A Detailed Site Investigation, prepared by Cardno dated 15 May 2020 (Exhibit M) concludes that while concentrations of contaminants found in soil and groundwater samples were generally less than relevant assessment criteria, remediation will be required due to the extent of excavation required for the basement.

68. The Remediation Action Plan (RAP), also prepared by Cardno dated 30 October 2020 (Exhibit N), recommends off-site disposal of excavated soil. The RAP is considered appropriate and practical, and the site is capable of being made suitable, subject to requirements set out in the Interim Advice 2, prepared by ZOIC Environmental dated 11 November 2020 (Exhibit R).

69. On this basis, and on the basis of the Technical Memorandum prepared by ZOIC Environmental dated 28 October 2020 (Exhibit V), and the proposed conditions of consent, I am satisfied that although the land is contaminated, it will be made suitable, after remediation, for the purpose for which the development is proposed to be carried out, namely residential use, as required by cl 7(1).

Orders

70. The Court notes that:

1. The Council of the City of Sydney Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the Development Application D/2020/628.

2. The Applicant lodged the amended development application on the NSW planning portal on 13 October 2021.

3. The Applicant filed with the Court the amended application on 13 October 2021.

71. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application D/2020/628 for alterations and additions to an existing two-storey building at 278 Palmer Street, Darlinghurst, subject to conditions in Annexure A.

3. All exhibits are returned, except for A, B, G, K, L and P.

…………………..

T Horton

Commissioner of the Court

Annexure A (450832, pdf)

**********

Amendments

16 December 2021 - Amended Solicitors for the applicant from 'Mills Oakley' to 'Alice Spizzo Advisory'.

Decision last updated: 16 December 2021