Arc Architects v Sydney City Council

[2004] NSWLEC 278

Land and Environment Court

of New South Wales

CITATION:	ARC Architects v Sydney City Council [2004] NSWLEC 278
PARTIES:	Applicant: ARC Architects Pty Ltd Respondent: Council of the City of Sydney
FILE NUMBER(S):	10139 of 2004
CORAM:	Roseth SC
KEY ISSUES:	Development Application - Development Control Plan - Development Standards :- appropriate fit into conservation area
LEGISLATION CITED:	South Sydney Local Environmental Plan 1998
CASES CITED:
DATES OF HEARING:	31/05/2004
DATE OF JUDGMENT:	06/03/2004
LEGAL REPRESENTATIVES:	Mr J Robson, barrister instructed by Mr J Camino of Comino Prassas Mr D Parry, barrister instructed by Ms B Warry of Abbott Tout

JUDGMENT:

-

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10139 of 2004

Roseth SC

3 June 2004

ARC Architects Pty Ltd

Applicant

v

Sydney City Council

Respondent

Introduction

1 This is an appeal against the refusal by Sydney City Council (the council) of a development application for alterations and additions to the existing building at 62-64 Riley Street, Darlinghurst.

The site

2 The site has its main 12m wide frontage to Riley Street and rear lane access from Crown Lane. It is 378m2 in area and 31m in depth. The existing building was built in the inter-War period, has five levels (including the ground floor) of which the top level was constructed in 2001. It has a symmetrical façade, is clad with face brickwork and broken into three bays separated by pilasters. The windows and doors are aluminium.

3 To the north of the site is a two-storey building. To the south is a vacant site, then a five level carpark. Opposite the site is an eight-storey block of flats. Apart from the carpark and the block of flats, buildings in this section of Riley Street (defined below) are two or three-storeys high.

The proposal

4 The applicant proposes to alter and add to the existing building. The part of the proposal that is in dispute is the replacement of the fifth level, constructed in 2001, with two new levels containing six apartments. The ground floor is to be altered to provide parking for six cars. The remaining three levels between ground and fifth are to remain in commercial use. The effect of the proposal is to increase the building from five to six levels, and from a height of 17.2m to 20.5m.

Relevant planning instruments and policies

5 The South Sydney Local Environmental Plan 1998 (the LEP) zones the site Zone No 10 – Mixed Uses Zone, and places it within Conservation Area 18. Development Control Plan 1997 (the DCP) establishes controls such as Floor Space Ratio (FSR) and height.

The issues

6 The council submitted a Statement of Issues containing 16 issues. During the hearing it became clear that there is only one issue in the case, namely whether or not the DCP’s height control of 12m should be varied for this application to allow a height of 20.5m.

Height and FSR controls in the DCP

7 Under the heading Height Controls, the DCP states that the building height should be no greater than the height specified in the Height Control Map not including an attic. The Height Control Map in the DCP shows a maximum height of 12m for the section of Riley Street between Yurong Lane and Stanley Street, which includes the site. The land along the south side of William Street (ie between William Street and Yurong Lane) has height limits of 15m and 18m. The land along Riley Street south of Stanley Street has a height limit of 9m. The DCP allocates a maximum FSR of 2:1 to the site.

8 The existing building’s height is 17.2m. The proposal would increase the height to 20.5m. The existing building exceeds the FSR control, though the evidence did not disclose by how much. The proposal would exceed it by a small additional amount, bringing it to 4.77:1.

9 Page 3 of the DCP says:

This Urban Design Plan is an integrated resource document based on a set of design elements. It adopts a performance-based system of control that focuses on matters to be addressed called performance criteria, to achieve desired outcomes. This approach allows flexibility and innovation by not restricting design solution to particular prescriptive standards (except for health and safety reasons).
The emphasis of the Plan is on the assessment of applications on merit to achieve the best possible balance between the diverse and sometimes conflicting issues that affect development sites.
The controls complement the performance criteria and are examples of ways to achieve the performance criteria. They are not an alternative prescriptive form of regulation nor do they preclude other ways.

10 Under Urban Design Principles the DCP states that development should be “sympathetic to the prevailing height, bulk, scale design and external appearance of adjacent buildings” (p 14). On p 72 the DCP deals with FSR and height.

The FSR and Height Maps identify the potential maximum limits of development. However, maximum limits may not be achievable in all instances. Environmental conditions set out in performance criteria will determine these.
Where a site is seen as capable of taking an FSR or height above the limit, and still satisfy environmental and amenity considerations, the onus is on the applicant to demonstrate to Council, by way of a detailed assessment of the urban context, that the site is capable of taking such increase.

11 With regard to height and scale control, the DCP identifies three objectives, namely to ensure that buildings:

· are appropriate in scale, compatible and complementary with areas of townscape significance, the site and its context;
· do not dominate and overshadow the public domain;
· achieve high environmental amenity.

12 The DCP nominates the following performance criteria for the height control:

· adopts the predominant height and scale of adjoining buildings and has a similar bulk and mass to the neighbours takes into consideration the topography and shape of the site, and taller buildings are located on the high parts of the site.
· together with the bulk is distributed on the site so as to ensure there is no significant loss of amenity to adjacent buildings and public streets and spaces.
· maximises solar access in the public domain and areas of private open space.

13 It is clear from the above that the DCP advocates flexibility and allows the consent authority to vary the numerical controls. However, the DCP states that numerical controls should be varied only where environmental and amenity constraints are satisfied. In this case where the existing building is already much higher than 12m, there is no case for complying with the height limit. The relevant impact to be assessed is the increase in non-compliance, ie the increase from the existing height of 17.2m to 20.5m.

Should the height control be varied?
The council’s case

14 The council’s planning expert was Ms S Grebe, a town planner employed by the council. She considered that the area relevant to this application is the precinct between William, Yurong, Crown and Stanley Streets. In this precinct she found only one building that exceeded five levels, namely the eight-storey block of flats opposite the site. She considered this building alien to the street and the precinct and did not agree that the proposal should take its cue from it. Nor did she think that the tall buildings on the north side of William Street should influence what happens on the site. William Street north was a different area, zoned differently and with different height and FSR controls. Ms Grebe believed that the 12m-height limit was appropriate and, if applied, would preserve the existing character of Riley Street.

15 In Ms Grebe’s opinion, levels 3 and 4 of the existing building could be adapted to residential use, so the applicant could achieve residential conversion without adding a sixth level. There were numerous conversions in the area of similarly proportioned commercial buildings to residential. Ms Grebe said that, while she accepted that the additional FSR was minor, the fact that it was more than twice the FSR limit in the DCP suggested that there was a good case for keeping the building within its existing volume.

16 In summary, Ms Grebe’s arguments against the proposal were as follows:

· The existing building already significantly exceeds the numerical height control.

· The numerical height control is appropriate.

· On the east side of this section of Riley Street the proposal would be the tallest building. Taking into account both sides of the street, the proposal would be the second tallest building (after the eight-storey block of flats).

· Approval of this building would support further approvals exceeding the height limit and thus lead to a gradual destruction of the street’s character.

· The applicant could adapt the building to partial residential use without adding to its height.

The applicant’s case

17 The applicant’s experts were Mr D Brindle, a town planner; Mr M Harrison, an urban designer; and Mr R Staas, a heritage consultant. While they submitted separate reports, they gave concurrent evidence with Ms Grebe during the hearing.

18 The applicant’s experts considered that the area relevant to this application was the section of Riley Street between William and Stanley Streets. Mr Brindle and Mr Harrison thought both sides of the street were equally relevant, while Mr Staas thought that the east side was of more relevance. A significant difference between the applicant’s experts and Ms Grebe’s was that the former thought that the large buildings on the north side of William Street had relevance to this site because they were visible from Riley Street. (Strangely, no one mentioned the Horizon Building, which looms large everywhere in the area.)

19 The applicant’s experts said that they believed that the 12m-height limit was inappropriate, because existing buildings already exceed it. In response to a question from the Court they agreed that this is true only of the eight-storey block of flats and the carpark. They also agreed that the proposal, if built, would be the second tallest building in this section of Riley Street and the tallest on the east side. They added that it would not appear as the tallest, since the carpark had a visually dominating lift tower.

20 Mr Harrison agreed that the approval of this application would make it more likely that non-complying buildings would be approved on the vacant site to the south and the underdeveloped site to the north. Given that the 12m-height limit was inappropriate, this would be of no concern to him.

21 A further difference of opinion between the applicant’s experts and Ms Grebe related to the need for the sixth level. Unlike Ms Grebe, the applicant’s experts believed that levels 3 and 4 were not suitable for residential conversion because of the building’s excessive depth.

22 In summary, the applicant’s experts’ argument in favour of the proposal was as follows:

· The existing building already significantly exceeds the numerical height control. Two other buildings in this section of Riley Street exceed it.

· Therefore the numerical height control is inappropriate.

· Taking into account both sides of the street, the proposal would be an appropriate fit with the eight-storey block of flats and the carpark (because of its lift tower).

· Approval of this building would support further approvals exceeding the height limit, but this would not matter since the height control is wrong.

· It was not practical to adapt the building to partial residential use without adding another floor to it.

Findings

23 I am persuaded by Ms Grebe’s evidence for the following reasons: First, the fact that the existing building exceeds the height control is not a valid argument in favour of increasing its non-compliance. There was no suggestion that the height of the building should be decreased. Moreover, the fact that a minority of buildings exceed the height control is not a valid argument that the control is inappropriate. The purpose of the control is to avoid future buildings above the height control.

24 Second, the tall buildings on the north side of William Street have little relevance to this section of Riley Street. It is true that they are visible from Riley Street, but this is the case from most parts of Darlinghurst. If the visibility of tall buildings were an argument against low height limits, there would be no justification for maintaining Woolloomooloo at its low scale, or indeed any of the inner suburbs on the fringe of the CBD. The 12m-height limit in this section of Riley Street is, in my opinion, highly appropriate and should be consistently maintained.

25 Third, the carpark has a lower height than the proposal. Its lift tower may be prominent and taller, but it is only a lift tower not a whole building. The only building in this section of Riley Street that could justify the proposal is the eight-storey block of flats on the west side. It is a building that everyone agreed was out of scale. I note that the applicant’s experts emphasised that the building existed and should therefore be taken into account. I do not accept that it is good planning practice to rely on the worst building in a street to justify a proposal.

26 Fourth, everyone agreed that the approval of this application would assist future non-complying proposals on the adjoining sites. I accept Ms Grebe’s opinion that it would assist future non-complying proposals on any site in this section of Riley Street. I do not accept Mr Harrison’s view that this would not matter.

27 Fifth, there was no evidence before the Court that the conversion of levels 3 and 4 to residential use was impractical. I take judicial notice of the fact that there are many commercial buildings in Da4rlinghurst (and other inner suburbs), of similar proportions, that have been converted.

28 I note that the DCP requires that objectives and performance criteria be considered as well as numerical controls. The relevant objective of the height control is that buildings are appropriate in scale, compatible and complementary with areas of townscape significance, the site and its context. It is clear from the above that the proposal does not meet this objective.

29 The relevant performance criterion is that a building adopts the predominant height and scale of adjoining buildings and has a similar bulk and mass to the neighbours, takes into consideration the topography and shape of the site, and taller buildings are located on the high parts of the site. The proposal does not adopt the height and scale of adjoining buildings.

30 For the above reasons the appeal is dismissed.

Orders

1. The appeal is dismissed.

2. Development application for alterations and additions to the existing building at 62-64 Riley Street, Darlinghurst is determined by refusal.

3. The exhibits are returned.

_________________
Dr John Roseth
Senior Commissioner