Arnott v City of Sydney Council

Land and Environment Court

New South Wales

Case Name:	Arnott v City of Sydney Council
Medium Neutral Citation:	[2015] NSWLEC 1052
Hearing Date(s):	3-5 March, 2015
Decision Date:	18 March 2015
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is upheld. 2. Development Application No. D/2014/231 for alterations and additions to Levels 9 and 10 of an existing mixed use building at 40 Macleay Street, Potts Point, is approved, subject to the conditions of consent at Annexure ‘A’. 3. The exhibits, other than exhibits D and E, are returned.
Catchwords:	DEVELOPMENT APPLICATION: alterations and additions to an existing mixed use building; whether the proposal is contrary to the built form outcomes of the Sydney Development Control Plan 2012, including height; impact on harbour views from surrounding apartments; whether the proposal has an impact on the heritage significance of heritage items in the vicinity of the proposal and the heritage conservation area; materials and colours of the proposal.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Tenacity Consulting v Warringah Council [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Craig Arnott (Applicant) City of Sydney Council (Respondent)
Representation:	Counsel: Mr R. Lancaster SC (Applicant) Mr A. Pickles Barrister (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) City of Sydney Council (Respondent)
File Number(s):	10781 of 2014

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act1979 (EPA Act) against the refusal of Development Application No. D/2014/231 for alterations and additions to the upper two levels of an existing mixed use building (the proposal) at 40 Macleay Street, Potts Point (the site) by the Council of the City of Sydney (the Council).
The appeal was not subjected to a conciliation conference.

Issues

The Council’s contentions in the matter can be grouped and summarised into three main areas:

Built form of the proposal:

·The proposal is contrary to the built form outcomes, including the height of buildings, in the Sydney Development Control Plan 2012 (DCP 2012);

View Loss:

·The proposal will result in the loss of iconic water views from apartments within ‘Ikon’, at 81 Macleay Street, particularly the apartments on Level 9, and from apartments within ‘Kingsclere’ at 1 Greenknowe Avenue, contrary to the Court’s planning principle regarding views (Tenacity Consulting v Warringah Council [2004] NSWLEC 140 at 25-29) (Tenacity planning principle);

Impact of the proposal on the heritage significance of the Potts Point/Elizabeth Bay Conservation Area and heritage items in the vicinity of the proposal:

·The existing building is identified as a neutral building, as a product of a non-significant historical period within the conservation area and does not detract from the conservation area. The proposal would have a detrimental impact on the heritage significance and visual amenity of the Potts Point/Elizabeth Bay Conservation Area and on the heritage significance of heritage items, ‘Manar’, at 40A – 42 Macleay Street and ‘Elizabeth Bay House’ in Onslow Avenue, Elizabeth Bay, because the proposed combination of increased bulk and the white light-weight materials are in stark contrast with the overall colour and texture of the existing building, making the proposal visually prominent and out of keeping with the character of the surrounding built form.

The Council concedes that the Building Code of Australia (BCA) experts engaged by the parties came to an agreement, in relation to Council’s contention regarding the proposal’s non-compliance with the BCA, during joint conferencing. Notwithstanding the agreement of the experts, the Council presses the contention that detailed solutions for addressing the proposal’s BCA compliance have not been demonstrated and the documentation simply identifies the non-compliances that need to be addressed as part of an Alternative Solution Report at the Construction Certificate stage.
Following the joint conferencing and agreement of the various experts in relation to the overshadowing and overlooking impact of the proposal on adjoining properties and amendments to the proposal, the Council does not press the following contentions:
·The proposal will have an adverse overshadowing impact on Apartments 220 and 221 of ‘Ikon’ at 81 Macleay Street and the rooftop communal open space of ‘Manar’ at 40A-42 Macleay Street; and
·The proposed rear balcony would provide an opportunity for the future residents to overlook the private open space of ‘Manar’ at 40A-42 Macleay Street.
The parties disagreed on the following condition in the (without prejudice) Conditions of Consent (exhibit 12):
Materials and Samples Board
A materials and sample board detailing all proposed finishes must be submitted to and approved by Council’s Area Planning Manager prior to a Construction Certificate being issued.
The applicant submits two versions of an alternative condition, the second being the applicant’s preference:
“Polar White” Finish
Materials and finishes are to be consistent with drawing DA Z 004 02 Materials & Finishes Selection, prepared by BVN DonovanHill Architects and dated 6 March 2014.
“Antique White” Finish
Materials and finishes are to be consistent with drawing DA Z 004 03 Materials & Finishes Selection, prepared by BVN DonovanHill Architects and dated 6 March 2014

The site and its context

The site is 713sqm in area and has a frontage to Macleay Street of approximately 19m. The site is located on the eastern side of Macleay Street and is occupied by an existing building, which was described by the experts as being an example of the ‘International Style’ of architecture, constructed as a hotel during the 1960s and now accommodating mixed uses. The existing building is 11 storeys, consisting of a two storey podium occupying the full width of the site, with a 9 storey tower over, setback from the side boundaries.
The side elevations of the existing building are clad in textured red brick and the front façade to Macleay Street consists of recessed balconies on every level on the northern side and a wall clad in blue charcoal tiles with punched windows trimmed in white on the southern side. The proposed alterations and additions are located at the upper two storeys of the existing building, Levels 9 and 10, which are partial levels atop the tower and accommodate two small, residential apartments, roof terraces and mechanical plant.
To the north, at 38 Macleay Street and adjacent to the site, is a contemporary 11 storey residential flat building known as the ‘Dorchester’.
To the south, at 40A-42 Macleay Street and adjacent to the site, is ‘Manar’, a residential apartment complex consisting of three buildings set within gardens. Buildings 1 and 2 are two to three storeys in height and building 3, which is immediately adjacent to the site, is 4 and 5 storeys in height.
To the east of the site is the cliff face in Onslow Place and ‘Elizabeth Bay House’ fronting Onslow Avenue and overlooking a park, Arthur McElhone Reserve.
To the west of the site, on the opposite side of Macleay Street, are two apartment complexes known as ‘Ikon’ at 81 Macleay Street and ‘Rockwall’ Apartments at 77 Macleay Street, each 22 storeys in height.

Background and the proposal

Previous consents

In 1996, the Council approved alterations to the existing hotel building including the conversion of the existing building to 65 strata titled apartments, with a gym and the retention of the existing shop.
In 2002, the Court approved, under a former planning regime, a curvilinear roof form addition to a height of RL67.5 (exhibit D) (file number 10157 of 2002). This consent has lapsed.

The proposal

The proposal is to retain the existing building component in the centre of the southern side of the existing tower of Levels 9 and 10 and to construct two, three bedroom, two storey apartments on Levels 9 and 10, one apartment on the eastern side and the other on the western side. The new structure will occupy the full width of the tower and is to be setback from the existing Macleay Street façade of the tower 3.437m and 5.383m on the eastern side, both setbacks are occupied by an outdoor terrace with a glass balustrade. Each apartment has an open living area on Level 9, consisting of dining, living, and kitchen; the eastern apartment has a laundry and bath and the western apartment has a guest bedroom and bath on Level 9. The existing lift access and fire stair are to be retained. Both apartments have three bedrooms and two bathrooms on the upper level, Level 10, and the existing mechanical plant area is to be retained.
The flat roof of the proposal is at RL64.63, which is 20mm below the existing handrail to the terrace over the mechanical plant area. The floor to ceiling dimension on Level 9, the living areas, is 2.7m and the floor to ceiling dimension on Level 10, the bedrooms, is 2.4m, with a 280-300mm allowance for the structure of the floor of Level 10 and 460mm for the ceiling and roof structure (exhibit E, DA-F-001).

Planning framework

The relevant provisions of State Environmental Planning Policy No 65—Design Quality of Residential Flat Development (SEPP 65) apply to the proposal, at cl 4(1)(b).
The site is zoned B4 Mixed Use pursuant to the Sydney Local Environmental Plan 2012 (LEP 2012) and the proposal is permissible with consent.
The relevant aims of LEP 2012 at sub-cl 1.2(2) are as follows:
(j) to achieve a high quality urban form by ensuring that new development exhibits design excellence and reflects the existing or desired future character of particular localities,
(k) to conserve the environmental heritage of the City of Sydney,
The objectives of the B4 Mixed Use zone, in the Land Use Table of LEP 2012, are as follows:
• 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.
• To ensure uses support the viability of centres.
The height of a building on the site is not to exceed 35m (Height of Buildings Map Sheet HOB_021 LEP 2012) and the relevant objectives of the height of buildings at sub-cl 4.3(1) are as follows:
(a) to ensure the height of development is appropriate to the condition of the site and its context,
(b) to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas,
(c) to promote the sharing of views,
The maximum floor space ratio (FSR) for the building on the site is not to exceed 5:1 (FSR Map Sheet HOB_021 LEP 2012).
The site is within the Potts Point/Elizabeth Bay Conservation Area (Schedule 5, C51 and Heritage Map Sheet HER_021 of LEP 2012) and the existing building on the site is identified as being neutral (Building Contributions Map Sheet 021 of DCP 2012). The site is adjacent to a heritage item, ‘House and flat building group “Manar” including buildings and their interiors, front fence and grounds’ 40A-42 Macleay Street, Elizabeth Bay (I592, Schedule 5 of LEP 2012) and in the vicinity of ‘Cliff face behind Elizabeth Bay House’ Onslow Place (I597, Schedule 5 of LEP 2012) and ‘House and grounds “Elizabeth Bay House” including interior and grounds’ 6-8 Onslow Avenue, Elizabeth Bay (I594, Schedule 5 of LEP 2012 and State Heritage Register Listing Number 00006). The relevant objective of the heritage conservation clause of LEP 2012, at sub-cl 5.10(1), is as follows:
(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,
Sub-clause 5.10(4) of LEP 2012 includes the following in relation to the 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. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).
Clause 6.21 ‘Design Excellence’ is a relevant consideration under sub-cl (2), as the proposal involves external alterations to an existing building. Development consent must not be granted to development to which this clause applies unless in the opinion of the consent authority the proposed development exhibits design excellence, at sub-cl (3). In considering whether development exhibits design excellence, the consent authority must have regard to the following relevant matters:
(c) whether the proposed development detrimentally impacts on view corridors,
(d)(iii) any heritage issues and streetscape constraints,
(d)(vi) street frontage heights,
The provisions of DCP 2012 are a relevant consideration. The purpose of DCP 2012, at 1.1, is to supplement the LEP 2012 and provide more detailed provisions to guide development.
The site is within the Potts Point locality, identified by Section 2 of DCP 2012. The Locality Statement for Potts Point, includes, at 2.2.4, the following relevant description and principles for development:
Potts Point is to maintain its character of grand terraces and significant street tree planting and small front gardens along Challis Avenue and Victoria Street. The northern residential pocket created by predominately interwar apartment buildings should be maintained. Buildings in Wylde Street are to maintain the streetscape quality created by side setbacks and the landscaped setting. Heritage buildings to the west of Macleay Street are to be maintained and respected.
(b) Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes.
(g) Maintain and reinforce the asymmetry of Macleay Street’s built form with predominantly 9 storeys along the eastern side and 3 to 5 storeys along the western side.
(h) Retain existing tall buildings along the western side, for example ‘Byron Hall’ as skyline elements within the lower street frontage heights.
The General Provisions at Section 3 of DCP 2012 include, at 3.9.5, the following regarding heritage items:
Development in the vicinity of a heritage item can have an impact upon the heritage significance of the item. The determination of the setting of a heritage item should consider the historical property boundaries, significant vegetation and landscaping, archaeological features, and significant views to and from the
property.
Objective
(a) Ensure that development in the vicinity of heritage items is designed and sited to protect the heritage significance of the item.
(3) Alterations and additions to buildings and structures and new development of sites in the vicinity of a heritage item are to be designed to respect and complement the heritage item in terms of the:
(a) building envelope;
(b) proportions;
(c) materials, colours and finishes; and
(d) building and street alignment.
The General Provisions at Section 3 of DCP 2012 include, at 3.9.6, the following regarding heritage conservation areas:
(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:
(b) views to and from the site;
(d) the type, siting, form, height, bulk, roofscape, scale, materials and details of adjoining or nearby contributory buildings;
(f) colour schemes that have a hue and tonal relationship with traditional colour schemes.
The existing building on the site is identified as a neutral building in terms of its contribution to the Potts Point/Elizabeth Bay Heritage Conservation Area (Building Contributions Map Sheet 021 Sydney Development Control Plan 2012). DCP 2012 relevantly includes the following in relation to neutral building at 3.9.8:
Neutral buildings are buildings that do not contribute nor detract from the significant character of the heritage conservation area.
Neutral buildings are:
• from a non-significant historical period but do not detract from the character of the Heritage Conservation Area.
(3) Alterations and additions to a neutral building are to:
(a) remove unsympathetic alterations and additions, including inappropriate building elements;
(b) respect the original building in terms of bulk, form, scale and height;
(d) use appropriate materials, finishes and colours that do not reduce the significance of the Heritage Conservation Area.
The site is the southernmost site in a row of properties along the eastern side of Macleay Street identified as having a height in storeys of 8 storeys (Height in storeys map Sheet 021 DCP 2012). The site is the southernmost site in a row of properties along the eastern side of Macleay Street identified as having a building street frontage height in storeys of 9 storeys (Building street frontage height in storeys map Sheet 021 DCP 2012). The Development Types at Section 4 of DCP 2012 include, at 4.2.1, the following regarding building height:
4.2.1.1 Height in storeys and street frontage height in storeys
Refer to Sydney LEP 2012 for the height in metres control that establishes the maximum height permitted.
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.
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.
Figure 4.22 of DCP 2012 illustrates the building form controls:
1 Footpath level
2 Ground floor level
3 Basement level
4 Maximum building height in storeys
5 Maximum building height in metres
6 Primary building setback
7 Street frontage height
8 Secondary building setback
9 Building form above the street frontage height
10 Building services
DCP 2012 includes the following relevant objective for building setbacks, at 4.2.2:
(ii) maintains the setting of heritage items and is consistent with building setbacks in heritage conservation areas.
DCP 2012 includes the following in regard to setback above the street frontage height, at 4.2.2.2:
(1) Setbacks above the street frontage height are to be included where:
(b) new development is adjacent to a heritage item to reduce visual impact and to respect the heritage item.
(2) a setback above the street frontage height is to be a minimum of 3m for residential above non-residential and for residential above residential.
DCP 2012 includes the following relevant provisions regarding solar access, at 4.2.3.1:
(2) Proposed apartments in a development and neighbouring developments must achieve a minimum of 2 hours direct sunlight between 9am and 3pm on 21 June onto at least 1sqm of living room windows and a minimum 50% of the required minimum area of private open space area.
(3) New development must not create any additional overshadowing onto a neighbouring dwelling where that dwelling currently receives less than 2 hours direct sunlight to habitable rooms and 50% of the private open space between 9am and 3pm on 21 June.

DCP 2012 includes the following regarding outlook, at 4.2.3.10:
(1) Provide a pleasant outlook, as distinct from views, from all apartments.
(2) Views and outlooks from existing residential development should be considered in the site planning and massing of new development.
Note: Outlook is a short range prospect, such as building to building, while views are more extensive or long range to particular objects or geographic features.

Public submissions

A number of resident objectors provided evidence at the commencement of the hearing on site. The objectors included residents of ‘Ikon’ at 81 Macleay Street, ‘Manar’ at 40A - 42 Macleay Street and ‘Kingsclere’ at 1 Greenknowe Avenue. The Court, in the company of the parties and their experts, viewed the site from apartments 908 and 909 on level 9 of ‘Ikon’, apartment 910 on levels 9 and 10 of ‘Ikon’, apartments 1005 and 1006 on level 10 of ‘Ikon’, apartment 1203 on level 12 of ‘Ikon’, apartment 23 and the roof of building 3 of ‘Manar’ and apartment 16 on level 7 of ‘Kingsclere’. Height poles were erected on the existing building to demonstrate the position of three of the corners of the top of the proposed roof, north-east, north-west and south-west, at RL64.63 (exhibit G).
A large number of submissions were made to Council (exhibit 2 ff 81-214, exhibit 4 ff 180-257 and exhibit 15) objecting to the original development application (exhibit 1), the amended development application (exhibit C) and the proposal before the Court (exhibit E). These written objections have also been considered.
The objections to the proposal can be summarised as follows:
·The proposal would obstruct harbour views to the east, obtained between the existing building on the site and the ‘Dorchester’ to the north, from all rooms and balconies of apartments 908, 909 and 910 of ‘Icon’ and will detrimentally impact on views from apartments 1005 and 1006 in ‘Ikon’;
·The proposal would impact on harbour views to the east from apartment 1203 of ‘Icon’;
·The proposal would affect the quality of light reaching the lightwell on the northern side of building 3 of ‘Manar’;
·The proposal would overshadow and overlook the outdoor terrace of the Building Manager’s apartment in building 3 of ‘Manar’;
·The proposal would overshadow the solar panels on the roof of ‘Manar’;
·The proposal would have a detrimental impact on the privacy and views from the garden to the north of building 2 of ‘Manar’ and the light spill from the proposal at night would impact on the amenity of the residents of building 2 of ‘Manar’;
·The proposal would have an impact on the privacy of the apartment on the upper two levels of the ‘Dorchester’;
·The proposal would impact on the heritage significance of ‘Manar’;
·The proposal will impact on the harbour views from apartment 16 of ‘Kingsclere’, by obstructing views of Little Sirius Cove on the southern shore of Mosman, when viewed from the dining room, living room and balcony;
·The proposal should include a sprinkler system in case of fire, as the building is over 25m high and there is a concern regarding the adequacy of the fire safety systems of the proposal, as a fire would present a risk to adjoining properties;
·The proposal is not a sympathetic addition to the existing building and the bulk and scale of the proposal will be visible from the locality and the harbour; and
·The proposal would have a detrimental impact on the visual curtilage of ‘Elizabeth Bay House’.
Two residents of 40 Macleay Street provided evidence on site in support of the proposal.

Expert and non-expert evidence

Expert evidence was provided on behalf of the Council by Mr Kerry Nash (planning), Mr Russell Olsson (urban design and architecture) and Ms Jennifer Hill (heritage). Expert evidence was provided on behalf of the applicant by Ms Clare Swan (planning), Ms Gabrielle Morrish (urban design and architecture) and Mr Robert Staas (heritage).
Mr Steve King, on behalf of the applicant, provided a joint report prepared with Mr Kerry Nash, in regard to impacts on solar access (exhibit 7). Mr Robert Marinelli on behalf the applicant and Mr Stuart Boyce on behalf of the Council, provided a joint report in regard to compliance with the Building Code of Australia (BCA) (exhibit 9).
Evidence was also provided by the architect of the proposal, Mr Phillip Rossington, a principal of BVN DonnovanHill Architects, in relation to the proposal’s architectural composition and expression, materials and colours.

Built Form of the Proposal

Evidence

The planning and urban design experts agreed that the proposal complies with both the development standards in LEP 2012 for the site; the height of buildings development standard is a maximum height of 35m and the proposal is 33.01m high at its highest point above existing ground level, at the eastern end of the proposed roof; and the FSR development standard is 5:1 and the proposal has a FSR of 4.33:1.
The experts agreed that the DCP controls are contradictory, as the street frontage height is higher than the building height in storeys (exhibit 6, par 69). According to Mr Nash, the building height in storeys control should have been 9 storeys and he bases this assertion on the Allen Jack + Cottier Architects and Godden Mackay Logan Heritage Consultants ‘City of Sydney Urban Design Study’ (exhibit 6, ff 174-178) (AJ+C & GML study), which includes the following text under ‘Built Form’ of Future Character Strategies (exhibit 6, f 176):
Maintain and reinforce asymmetry of Macleay Street’s built form with predominately 9 storeys along the eastern side and 3 to 5 storeys along the western side.
According to Ms Morrish, had the Council wanted a ‘transitional’ building height adjacent to ‘Manar’, the height of buildings development standard of LEP 2012 for the site would have reflected the desire for a transition in height between the ‘Dorchester’ and ‘Manar’.
The experts agreed that the existing building, including podium and tower, is a 9 storey building and complies with the street frontage height of 9 storeys in DCP 2012 (exhibit 6, par 70). The experts agreed that the ‘Dorchester’, approved prior to the commencement of LEP 2012 and DCP 2012, is 11 storeys high, with a 9 storey front bay and the form step back on the upper two levels (exhibit 6, par 72). Ms Morrish and Mr Olsson agreed that the design and form of the ‘Dorchester’ is not an appropriate precedent to base the response of the proposal (exhibit 6, pars 83, 84). Ms Morrish noted that the existing building on the side presents a 9 storey street wall form (existing podium and tower) that is 8.4m wide with sky visible either side due to the generous side setbacks of the tower and that the tower is much narrower than the ‘Dorchester’ (exhibit 6, pars 45, 85, 89).
According to Mr Nash, the fine grained detailed urban design assessment undertaken for the area establishes the desired future character for the development in Macleay Street and should form the basis of assessing whether the proposal achieves the objectives of the height of buildings development standard (exhibit 6, par 77). In Ms Morrish’s opinion, the AC+J & GML study sought to encourage height increases to allow buildings on the ridge to develop to a height and form similar to their counterparts along the street (exhibit 6, par 79).
According to Mr Olsson, the secondary building setback of the proposal should be increased to 5m to ameliorate the impact of the proposal on the streetscape of Macleay Street (exhibit 6, par 98). Mr Olsson noted that the 3m secondary building setback at 4.2.2.2(2) of DCP 2012 is a minimum requirement of 3m. Ms Morrish disagreed and in her view, setting the proposal further back on the western side is not necessary, as the proposal improves the visual quality of the existing building (exhibit 6, par 94). Mr Olsson considered that the strong architectural expression of the proposal is inappropriate and it should be more visually recessive (exhibit 6, pars 95, 98).
The experts agreed that the eastern extent of the proposal, being the rear setback, which is approximately 5m further to the east than the rear setback of the ‘Dorchester’ on its upper levels, is acceptable, notwithstanding that it is this eastern portion of the proposal on Level 10, extending beyond the rear setback of the ‘Dorchester’, that obstructs the views of Little Sirius Cove from apartment 16 of ‘Kingsclere’.

Findings

The experts agreed that the DCP controls for the site are contradictory, as the building street frontage height in storeys control (9 storeys) is higher than the height in storeys control (8 storeys). Mr Pickles submits that the 8 storey height in storeys control for the site (Height in storeys map Sheet 021 DCP 2012) ‘appears to be an inconsistency within the DCP itself’. The parties agreed I should put aside the 8 storey height in storeys control in DCP 2012.
The extract of the AJ+C & GML study (exhibit 6) includes the following relevant text:
3.2 Neighbourhood Character Strategies
Setting and topography
Recognise and maintain the structure of the neighbourhood with taller buildings along the ridge line.
Built Form
Maintain and reinforce asymmetry of Macleay Street’s built form with predominately 9 storeys along the eastern side and 3 to 5 storeys along the western side.
Existing tall buildings along the western side, such as ‘Icon’ [sic] and ‘Byron Hall’ remain skyline elements within a lower street wall.
Promote buildings with narrow frontages and party-wall or small building separations along street fronts including Macleay Street…
Recognise the role of existing buildings that exceed the context height as unique skyline elements. These buildings do not set a precedent for future building heights.
7.6 ‘Neighbourhood and Local Centre Provisions’
Building Massing and Design
Building Heights (storeys)
Building heights in metres are included in Section 4.1 LEP Requirements. This section also outlines the building height methodology uses [sic] in this to determine height recommendations. The methodology addresses both height in storeys and height in metres. Height in storeys is included within the DCP provision recommendations to provide an understanding of the height intent in relation to the neighbourhood character and the building types in the area. Height in storeys does not include attics, however attics are included in the overall height in metres (refer to Figure 1 and Attic section for more detail).
Development opportunities in the area are predominately infill and likely to be incremental. It is therefore important for development to respond to heights within the existing context as well as those described in future context in the proposed height map.
The phrase in the AJ+C & GML study, ‘predominately 9 storeys on the eastern side of Macleay Street’ must be read in the context of the relevant text, quoted above. Firstly, it refers to 9 storeys along the eastern side and 3 to 5 storeys along the western side of Macleay Street, so it is not specifically referring to the block between Manning Street and Rockwell Crescent (as ‘Ikon’ and ‘Rockwell’, on the western side of Macleay Street, are 22 storeys high), although I accept it is a sweeping statement referring generally to the built form of Macleay Street and the report identifies ‘Ikon’ as being an exception as a skyline element within a lower street wall. The phrase, ‘predominately 9 storeys on the eastern side of Macleay Street’ is consistent with having a building street frontage height of 9 storeys and I accept the agreed evidence of the experts that the existing building, including the podium and tower, is a 9 storey building and the proposal, with a secondary building setback, complies with the street frontage height of 9 storeys building street frontage height in storeys in DCP 2012. Map 4.1.3 ‘Proposed Height Controls (metres)’ in the AJ+C & GML study (exhibit 6, f 177) envisages a row of 35m high buildings on the western side of Macleay Street with the site being the southernmost site identified in the row. Had the study’s authors intended that a 9 storeys high building was appropriate for the whole site, the study would not have identified the site in Map 4.1.3 as having a maximum height of 35m. For these reasons, I do not accept Mr Nash’s evidence that the ‘predominately 9 storeys on the eastern side of Macleay Street’ means that the building height in storeys controls should have been 9 storeys. In setting aside the 8 storey building height in storeys control in DCP 2012, it is not appropriate or necessary to interpolate an alternative number of storeys for the building height in storeys control in DCP 2012.
I am satisfied that the height of building development standard in LEP 2012 of 35m and the maximum 9 storey building street frontage height in storeys in DCP 2012 are compatible. The purpose of DCP 2012, at 1.1, is to supplement the LEP 2012 and provide more detailed provisions to guide development. I adopt Commissioner Tuor’s reasoning in Al Maha Pty Ltd v Marrickville Council [2013] NSWLEC 1072 in regard to the relationship between the number of storeys control in a DCP and a height of buildings development standard in a LEP, as follows:
32 I accept the parties' agreement that the number of storeys control in MDCP is not the same or substantially the same as the height control in MLEP. I also accept the council's submission that the number of storeys in MDCP is also not inconsistent or incompatible with the height control in MLEP. The number or storeys and number of metres both deal with aspects of height, but the DCP control provides more detail on how the maximum height may be distributed on the site to achieve the objectives of the height control. However, in reaching this conclusion, I do not accept that the achievement of the maximum height can be limited on the basis of numerical compliance with the number of storeys, if the objectives of the height control are met.
I accept the applicant’s submission that LEP 2012 height of buildings development standard for East Sydney, including Potts Point, is a result of a detailed, comprehensive examination of the three dimensional urban form of the existing Potts Point/Elizabeth Bay peninsula and as a result, the height of buildings development standard, as shown in the map (HOB_021 LEP 2012) reflects careful consideration of the desired future character of the area and is not, in this instance, simply a broad-brush strategic planning tool. I base this conclusion on the detailed analysis in the AJ+C & GML study and the fact that the relative heights shown on the maps (Map 4.1.3 of the AJ+C & GML study and HOB_021 LEP 2012) deal with each site, either on an individual or a small group basis and closely respond to the existing built form of the area. This is demonstrated by ‘Manar’, which has a maximum height of 15m, presumably in response to the existing height of the residential complex and its listing as a local heritage item, in contrast to the sites adjoining ‘Manar’, which have maximum heights of 22m, 27m and the site at 35m, reflecting the existing and desired heights of buildings adjacent to ‘Manar’. The buildings on the eastern side of Macleay Street, between MacDonald Street and the site, have a maximum height of 35m, to reinforce the built form relationship to topography, with taller buildings along the ridge, and in response to the existing, tall residential flat buildings along the eastern side of Macleay Street.
The 35m maximum height for the properties on the eastern side of Macleay Street is significantly taller than the maximum height for properties further to the east of Macleay Street, leading down to the bay of Elizabeth Bay. I accept Ms Morrish’s evidence that the AC+J & GML study sought to allow buildings on the ridge to develop to a height and form similar to the row of residential apartment buildings on the eastern side of Macleay Street. This is confirmed by the Lord Mayor, in her response to questions on notice posed by a Councillor regarding Macleay Street, Potts Point and LEP 2012, at a Council meeting on 15 September, 2014, regarding the translation of maximum height controls along Macleay Street from the former South Sydney DCP 1997 into LEP 2012, where she stated that some properties had a height increase in response to the height of neighbouring development, to allow those properties the opportunity to develop to a scale consistent with the neighbourhood (exhibit J, relevant extracts):
The NSW Government required height and floor space ratio controls to be in the LEP rather than the DCP. The government also required councils to use standard definitions. This change in definition affected building height. Under the South Sydney DCP 1997, building height was measured to the ceiling of the uppermost floor. Under the LEP, building height is measured to the uppermost part of the building and includes roof forms, lift overruns and plant. Three meters was added to the previous height controls to allow for roof forms, lift overruns and plant.
The LEP changed the height and floor space ratio controls for properties on Macleay Street to reflect the existing built form and character of the area.
The LEP was informed by studies into a range of issues, including urban design studies for the major village areas. The urban design studies analysed the built form and urban character of the village areas, prepared character statement to guide development and recommended future planning controls, including height, floor space ratio and land use.
The height controls of all properties in Macleay Street were changed to allow for the new definition of height. This occurred when the height shown in South Sydney DCP was lower than the actual height of the existing building. Other properties had a height increase in response to the height of neighbouring development, allowing those properties the opportunity to develop to a scale consistent with the neighbourhood.
Residents were informed and had input into the urban design study through community meetings in November 2005 and March 2006. The draft study was placed on exhibition during May and June 2006, and 26 of the submissions received related to the City East area. The final study, including changes in response to submissions, was noted by Council in October 2006.
For public exhibition of Sydney LEP 2012, advertisements were placed in The Sydney Morning Herald, the Financial Review, The Australian and local newspapers and it was notified on the City’s website. 105,800 individually addressed letters were sent to landowners; at least 70,000 were included with a schedule of rates notice. City staff contacted community and industry stakeholders, neighbouring councils, and individuals known to have a particular interest in the exhibition by telephone or emails. City staff also met directly with residents’ groups and industry representatives to explain the plan.
More than 1,000 submissions were received to the draft LEP across the whole council area. 77 submissions related directly [to] the City East area and 52 of those related to properties on Macleay Street.
I accept the evidence of Ms Morrish that had Council wanted a ‘transitional’ building in terms of the overall height of buildings, between the ‘Dorchester’ and ‘Manar’, the height of buildings maps (Map 4.1.3 of the AJ+C & GML study and HOB_021 LEP 2012) would have reflected this. Instead, the height of buildings development standard for the site clearly envisages the site being at the southern end of the row of buildings on the ridge to develop to a height and form similar to some of the taller residential apartment buildings on the eastern side of Macleay Street.
DCP 2012 includes a minimum 3m setback for the secondary building setback above the street frontage and the proposal complies, with a secondary building setback of 3.437m. I accept Ms Morrish’s evidence that the secondary building setback is sufficient, as the setback is greater than the setback of the upper levels of the ‘Dorchester’ and an additional 1.5m setback would not significantly alter the form of the proposal.

In conclusion, the Council’s contention, that the proposal is contrary to the built form outcomes, including the height of buildings, in DCP 2012, is not borne out by the evidence; as the proposal is consistent with the desired future character of Potts Point and therefore satisfies the objective of the height development standard in LEP 2012 at sub-cl 4.3(1)(a) to ensure the height of development is appropriate to the condition of the site and its context.

View Loss

Evidence

The planning and urban design experts agreed that apartments 908, 909, 901, 1005 and 1006 of ‘Ikon’ are affected by the proposal in terms of view loss and that the impact of the proposal on the views of other apartments is minor and acceptable. The experts agreed that amendments made to the proposal have reduced the extent of view impacts, when compared to the impacts of the original development application.
The four steps of the Tenacity planning principle are as follows:
26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.
27 The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.
28 The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.
29 The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.
The experts rated the view loss from each apartment, using the Tenacity planning principle qualitative descriptions of view loss at par 28, as follows:
According to Mr Nash, the proposal will have a devastating impact on the iconic views currently enjoyed by the occupiers of apartments 908, 909 and 910 of ‘Ikon’ and that this will have a substantial and detrimental impact on the amenity of these apartments.
Ms Morrish disagreed with Mr Nash’s assessment of the views as ‘iconic’, (using the assessment of views to be affected at par 26 of the Tenacity planning principle). In her opinion, the views in totality cannot be considered as being iconic, as iconic in the Tenacity planning principle relates to particular elements within a harbour view, rather than the whole view (exhibit 6, par 51).
Ms Swan notes that there are 185 apartments within ‘Ikon’ and the proposal will have a detrimental impact on the views from 3 apartments.
Mr Nash, in applying the fourth test of the Tenacity planning principle regarding the reasonableness of the proposal, provided the following evidence (exhibit 6, par 41):
‘…it would have been a reasonable expectation of the owners of the nominated apartments that the likelihood of redevelopment of the subject site or any change to its envelope would have been low. Furthermore, the new controls embodied in the Sydney DCP 2012 clearly sought to maintain the 8-9 storey presentation to Macleay Street despite the Sydney LEP incorporating a higher maximum building height. In [my] opinion the fine grained urban design assessment of Macleay Street and its environs has greater weight in determining compliance or otherwise of the proposed development.’
Ms Morrish disagreed with Mr Nash’s evidence concerning the expectations of the residents of ‘Ikon’, given the previous and now lapsed consents for additions to 40 Macleay Street dating back to 1997 and the public consultation process leading to the making of LEP 2012, which includes a 35m maximum height development standard for the site.
In regard to the ‘skilful design’ test in the Tenacity planning principle, it was Mr Nash’s view that the upper bedroom level of the western apartment of the proposal could be removed and this would maintain a significant portion of the harbour views to Elizabeth Bay from the level 9 apartments in ‘Ikon’.
Ms Morrish considered that carving out part of the proposal’s envelope is not the intent of the skilful design test in the Tenacity planning principle. In her opinion, the skilful design test is to look for opportunities within the massing and form of the proposal to minimise the impact on views across the site, whilst maintaining the capacity to reasonably develop the site. It is not the equivalent of the ‘design excellence’ test in cl 6.21 of LEP 2012. Taking into consideration the compliance of the proposal with the development standards in LEP 2012 and the controls in DCP 2012, Ms Morrish considered that the removal of half of one apartment pays no heed to the reasonableness of the proposal and fails to meet the applicant’s brief; instead it amounts to punishing the applicant. Ms Morrish stated that the applicant did explore other options for the massing of the proposal; however the significant side setbacks of the tower made the partial top two levels of the tower the most appropriate location for an addition. In her opinion, an addition to the side of the tower would not comply with the provisions in SEPP 65 and the Residential Flat Design Code.

Findings

I accept Ms Morrish’s evidence that the views themselves are not iconic, using the Tenacity planning principle’s assessment of views to be affected criteria, although elements of the views, such as the harbour islands, could be described as iconic. Nevertheless, I understand that the existing views from levels 9 and 10 of ‘Ikon’ are highly valued by the occupants of these apartments and I appreciate that the partial eastern harbour view, seen between the ‘Dorchester’ and the existing building at 40 Macleay Street, is a very pleasant vista of the bay and the harbour beyond. The proposal will have a detrimental impact on this partial, eastern harbour view between the two buildings from level 9 of ‘Ikon’ and to a lesser extent, from level 10. I would describe the impact on the whole of the view from apartment 908 as severe; on apartment 909 as moderate to severe, as the view to the south-east of 40 Macleay Street from the bedroom will be retained; and on apartment 910 as moderate. I accept the evidence of the experts that the proposal’s impact on the eastern views from apartments 1005 and 1006 on level 10 of ‘Ikon’ is in the range of minor to moderate. I accept the evidence of the experts that the proposal’s impact on the expansive harbour views from the living rooms and balcony of apartment 16 of ‘Kingsclere’ is minor, although a portion of the view of Little Sirius Cove, which could be described as iconic, will be obstructed by the proposal.
I accept and adopt Ms Morrish’s interpretation of the skilful design test in the fourth step of the Tenacity planning principle. The skilful design test is not about whether a design is skilful, in the sense of the architect’s expertise in creating a successful architectural composition; instead the intent of the fourth step is to look for opportunities within the massing and form of the proposal to minimise the impact on views across the site, whilst maintaining the capacity to reasonably develop the site. This is evident in Dr Roseth’s own words at paragraph 29 of the Tenacity planning principle, ‘whether a more skilful design could provide the applicant with the same development potential and amenity’ [bold added]. It is partly for this reason that the Tenacity planning principle is less helpfully applied to impacts on views from individual apartments within residential apartment buildings, as there are generally more limited opportunities to rearrange massing to preserve what is often a singular orientation to a view. For this reason, it is also appropriate to consider the residential apartment building as a whole in assessing view impacts.
While I am satisfied that the resident objectors’ concern regarding the impact of the proposal on their harbour view is well founded; it is fair to weigh the detrimental impact of the proposal on their views against the reasonableness of the proposal.
I accept the evidence of Ms Morrish that the resident objectors should have had a reasonable expectation of the potential for an addition to the site, given the previous and now lapsed consents for additions to 40 Macleay Street dating back to 1997 and more pertinently, the public consultation process leading to the making of LEP 2012. The Lord Mayor, in her response questions on notice posed by a Councillor regarding Macleay Street, Potts Point and LEP 2012, at a Council meeting on 15 September, 2014 (quoted at par 56) explains the Council’s reasoning behind the height increases for some buildings along Macleay Street, including the site.
I accept Ms Morrish’s description of the site as being within a highly urbanised environment and her view that the siting of the proposal is constrained by the form of the existing building. The proposal has adopted tight floor to ceiling and structural depth dimensions to minimise the overall height of the proposal and the consequent impact on views across the site. I am satisfied that the proposal represents a fair balance between realising the reasonable development potential of the site and retaining as much as possible of the eastern harbour view gained across the site from the ‘Ikon’ apartment building. Any further eroding of the proposed building envelope, as suggested by Council’s experts, would, in my view, impose an unreasonable constraint on the development potential of the site.
In conclusion, the Council’s contention, that the loss of harbour views as a result of the proposal is contrary to the Court’s planning principle regarding views, is not borne out by the evidence; as the impact of the proposal on harbour views from surrounding apartments, being the impact of a fully complying development, is considered acceptable and therefore satisfies the objective of the height development standard in LEP 2012 at sub-cl4.3(1)(c) to promote the sharing of views.

Impact of the proposal on the heritage significance of heritage items in the vicinity of the proposal and on the heritage significance of the Potts Point/Elizabeth Bay Conservation Area

Evidence

Regarding the impact of the proposal on the heritage significance of ‘Manar’, Mr Staas’ evidence is that one cannot focus on both building 3 of ‘Manar’ and the top two floors of 40 Macleay Street at the same time when walking northward on Macleay Street, but instead one must look up to see the proposal. In his view, ‘Manar’ is an isolated example of a small building and the existing building at 40 Macleay Street, with its red textured brick walls, provides a strong, but recessive, contrast to ‘Manar’.
According to Ms Hill, the existing building is a juxtaposed to ‘Manar’ and forms a backdrop. In her view, the setting of ‘Manar’ will be changed as a result of the proposal, as 40 Macleay Street will be transformed from a 9 storey building to an 11 storey building and the additions will dominate the existing tower, as it is clad in non-recessive finishes. The existing building provides a transition between the ‘Dorchester’ and ‘Manar’ in her view. The proposal adds bulk to the existing building and does not help relate the existing building to ‘Manar’.
In regard to the impact of the proposal on views of ‘Elizabeth Bay House’, Mr Staas is of the view that the proposal is framed by ‘Ikon’ as a backdrop to the proposal when viewed from Onslow Place and when viewing ‘Elizabeth Bay House’ from its primary viewing location in Arthur McElhone Reserve, the existing building at 40 Macleay Street cannot be seen. For this reason, the proposal will not impact upon the heritage significance of ‘Elizabeth Bay House’.
According to Ms Hill, the existing building at 40 Macleay Street forms part of an amphitheatre around ‘Elizabeth Bay House’. She acknowledged that one does see ‘Ikon’ as part of the distant backdrop and that the principal view of ‘Elizabeth Bay House’ is from the Arthur McElhone Reserve where the proposal would not be seen from, however in her opinion, the view of the context from the rear of ‘Elizabeth Bay House’ is also important and the white colour of the proposal is not recessive.
According to Mr Staas, the proposal is recessive in visual appearance, sympathetic to the existing building and it would read as an integrated but distinct part of the existing structure with an appropriately contemporary character. In his opinion, the proposal would have a minimal impact on the streetscape of Macleay Street due to the diverse nature and character of the conservation area and because the area continues to evolve with new pressures for change which are similar to those that occurred in the Inter-War period.
It is Ms Hill’s evidence that the Potts Point/Elizabeth Bay Conservation Area is composed of significant layers dating from the Victorian to the Interwar period. The existing buildings is identified as neutral within the conservation area, as it does not date from a significant period, however its height, finish, modulation, form and masonry qualities are consistent with the interwar period. It is not a building in need of a contemporary cap, in her view. The proposal is an insensitive response to the positive characteristics of the existing building and does not respond to the predominate face brick character of the interwar period.

Materials and colour of the proposal

Evidence

According to Mr Rossington, when designing the proposal he sought to make the proposal clearly identifiable as an addition, but sympathetic to the existing building’s palette of materials and colours. The white finish of the proposal picks up the white of the soffits and planes of the existing building, in his opinion.
According to Mr Olsson, a dark chocolate colour for the proposal is preferable and it is not appropriate to for the proposal copy the ‘antique white’ colour of ‘Manar’. In his opinion, the proposal should be visually recessive in keeping with the established visual hierarchy in street. Using white would unnecessarily draw attention to the addition.

Findings

The question of whether proposal, as a distinct, contrasting and contemporary addition to a 1960s building, represents an appropriate philosophical approach to adding to the existing building to take advantage of the permitted building envelope is ultimately subjective. It is generally the Council’s experts’ view that any addition should be diminutive and recessive.
I accept Ms Hill’s evidence that the existing 1960s building on the site, as an architecturally competent example of its era, does contribute to the architectural diversity of the conservation area and that its neutral status reflects only that it dates from a period outside the key periods of development for which the conservation area is identified. However, I am not persuaded that that the existing building cannot accommodate another layer of development, for the following reasons:
·the existing building is identified as being neutral within the Potts Point/Elizabeth Bay Conservation Area and therefore its external intactness is not fundamental to the collective significance of the conservation area;
·the roof terraces and plant on the top of the existing tower are the least successful aspect of the architecture of the existing building.
I am not persuaded that the proposal will have any impact on the visual curtilage of ‘Manar’ or ‘Elizabeth Bay House’, as the conservation area is diverse in character and although the proposal will be visible, I do not accept that being visible, in and of itself, translates to having a detrimental impact on the visual curtilage and the heritage significance of the heritage items in the vicinity of the site or on the significance of the conservation area. While I understand it is a balance, in managing change within an area with such a rich architectural heritage, between letting the key periods of architecture dominate and encouraging a new layer of exemplary, contemporary architecture, it is acceptable, in my view, to contrast the expression of the proposal with the existing building and it is not necessary to make the proposal deferential to the original building in this instance.
As the master planning for the area clearly envisages a row of tall buildings along the eastern side of Macleay Street, then it is fitting to permit an addition to an existing building, which makes a neutral contribution to the conservation area, to make a confident statement. I am content that the proposal represents an appropriate expression of the objectives in the development standards and controls in the Council’s planning regime and importantly, I am satisfied that the proposal is a skilful and competent design that artfully responds to the unique constraints and opportunities of the site.
I accept the evidence of Mr Olsson that it is inappropriate for the proposal to mimic the colour of ‘Manar’ and that the proposal should not compete with the significant Interwar architecture of the locality. I am persuaded by Mr Rossington’s preferences for the materials and colours, as shown on drawing DA Z 004 02 ‘Materials & Finishes Selection’, prepared by BVN DonovanHill Architects and dated 6 March 2014. I note the following requirement in regard to the reflectivity of the materials is included in the conditions of consent:
(3) REFLECTIVITY
The Certifying Authority must ensure that the visible light reflectivity from building materials used on the facade of the building does not exceed 20% prior to issue of the Construction Certificate.

Detailed solutions for addressing the proposal’s BCA compliance

The BCA experts agreed on the following (exhibit 9):
·The detailed fire engineering solutions are appropriately assessed at the Construction Certificate (CC) application stage;
·The non-compliances will be addressed as part of an Alternate Solution Report at the CC application stage;
·In formulating a fire engineering solution, the following will be considered:
♦ the connection to the Building Occupant Warning System;
♦ the existing stair pressurisation system;
♦ the efficacy of the fire hydrant system;
·The stair pressurisation system is compliant and operational to the relevant Australian Standard, on the evidence of a report by Smoke Busters dated 2 October 2013.
·The fire hydrant system was rectified and accepted as compliant by the Council in their correspondence dated 22 December 2010.
·Evidence of an in principle agreement from NSW Fire & Rescue to a fire engineering solution is not required under the regulations, however it is acknowledged that their agreement in principle would be good practice.

I accept the agreed evidence of the experts and I note that the following requirements in relation to BCA compliance are included in the conditions of consent:
(21)   BCA COMPLIANCE - ALTERATIONS AND ADDITIONS – FIRE SAFETY STRATEGY REPORT HAS BEEN PROVIDED AND BCA VARIATIONS ARE SOUGHT (CC REQUIRED)
(a) Pursuant to Clause 94 (b) of the Environmental Planning and Assessment Regulation 2000, adequate measures shall be provided to protect persons using the building and to facilitate their egress from the building in the event of fire.
(b) As identified in Section E of the ‘BCA 2013 Capability Statement’ by Philip Chun dated 10/02/14, referral shall to made to Fire and Rescue NSW regarding the proposed alternative solution reports for the omission of sprinkler protection and suitability of the existing fire hydrant. In addition to these matters the alternative solution reports and fire safety strategy shall consider those Category 2 measures impacting operational fire fighting and rescue requirements for the existing building required under the BCA as invoked by the proposed increase in effective height above 25m. These will include emergency lift, provision of a fire control centre, fire hydrant and the proposed omission of sprinklers in the existing building.
(c) Prior to a construction certificate being issued the certifying authority must ensure that the proposed upgrading strategy and alternative solutions adopted therein satisfy the Building Code of Australia by complying with Clause A0.4 of the BCA.
(22)   FIRE SAFETY CERTIFICATE TO BE SUBMITTED
A Fire Safety Certificate must be submitted to the Principal Certifying Authority for all of the items listed in the Fire Safety Schedule prior to an Occupation Certificate being issued. A copy of the Fire Safety Certificate must be submitted to Council if it is not the Principal Certifying Authority.
(23)   ANNUAL FIRE SAFETY STATEMENT FORM
An annual Fire Safety Statement must be given to Council and the NSW Fire Brigade commencing within 12 months after the date on which the initial Interim/Final Fire Safety Certificate is issued or the use commencing, whichever is earlier.
(24)   BCA - NEW BUILDING WORKS - CLASS 2-9 BUILDINGS
(a) Pursuant to Clause 98 of the Environmental Planning and Assessment Regulation 2000, the proposed building work must comply with the Building Code of Australia (BCA).
(b) Any alternative building solution, as referred to in Part A0 of the BCA, must be prepared by a suitably qualified and accredited person and be submitted to the Certifying Authority illustrating how the relevant performance requirements of the BCA are to be satisfied. Prior to a Construction Certificate being issued, the Certifying Authority must ensure that the building complies with the Building Code of Australia.

Overshadowing impact on apartments 220 and 221 of ‘Ikon’ at 81 Macleay Street and the rooftop communal open space of 42 Macleay Street

The planning and urban design experts agreed that the proposal increases the overshadowing on apartments 220 and 221, however the impact is very minor (exhibit 6, pars 7-14 and annexure C).
The planning and urban design experts agreed that the Building Manager’s terrace on building 3 of ‘Manar’ is fully overshadowed in June by the existing building. The experts agreed that the proposal increases the overshadowing of the Building Manager’s terrace at the March equinox; however that impact is minor (exhibit 6, pars 5-6 and annexure C).
The planning and urban design experts agreed that the common rooftop area on ‘Manar’ is not a matter for consideration as By-Law 31 in Strata Plan 13576 excludes any use or access to the roof top area other than for maintenance (exhibit 6, par 4 and annexure D).
Council did not press this contention on the basis of the agreement of the experts.

Overlooking of the private open space of 42 Macleay Street

The planning and urban design experts agreed that the potential for a future occupant of the proposal to overlook the private open space of ‘Manar’ adjacent is addressed by a planter 1m high and 1m deep along the southern edge of the roof deck (exhibit 6, par 17).
Council did not press this contention on the basis of the agreement of the experts and the amendment of the proposal to include the planter along the southern edge and part of the eastern edge of the eastern roof deck on Level 9 (exhibit E, DA-D-001).

Conclusion

In relation to the Council’s contention that the proposal is contrary to the built form outcomes, including the height of buildings, in the Sydney Development Control Plan 2012, I find, on the evidence before the Court, that the envelope of the proposal is clearly envisaged by the AJ+C & GML study and that the findings and recommendations of the study have been translated into the development standards and relevant built form controls.
For the reasons set out in the judgment, I am satisfied that the proposal achieves the relevant objectives of the height of buildings development standard in LEP 2012; to ensure the height of development is 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 or special character areas; and to promote the sharing of views; and as a consequence, that the proposal should be granted consent.

Orders

The orders of the Court are:
(1)The appeal is upheld.
(2)Development Application No D/2014/231 for alterations and additions to Levels 9 and 10 of an existing mixed use building at 40 Macleay Street, Potts Point, is approved, subject to the conditions of consent at Annexure ‘A’.
(3)The exhibits, other than exhibits D and E, are returned.
____________
Susan O’Neill
Commissioner of the Court
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Amendments

20 March 2015 - Part of paragraph 74 deleted as instructed by Commissioner O'Neill

[2015] NSWLEC 1052

18 March 2015