Auswin TWT Development Pty Ltd v Council of the City of Sydney

[2015] NSWLEC 1273

Land and Environment Court

New South Wales

Medium Neutral Citation:	Auswin TWT Development Pty Ltd v Council of the City of Sydney [2015] NSWLEC 1273
Hearing dates:	15-16 June and 14 July, 2015
Decision date:	23 July 2015
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is upheld. 2. Development Application No. D/2014/1147 for the Stage 1 building envelope of a mixed use development, comprising residential units across four buildings and retail at ground floor fronting Harris Street, is approved, subject to the conditions of consent at Annexure A. 3. The exhibits, other than exhibits 8, A, D and E, are returned.
Catchwords:	DEVELOPMENT APPLICATION: Stage 1 building envelope; mixed use development; inadequate information provided, overdevelopment of the site, whether the stage 2 apartments will provide adequate amenity for residents and impact of the proposal on the public domain; all contentions resolved by amended proposal and agreed conditions of consent.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Auswin TWT Development Pty Ltd (Applicant) Council of the City of Sydney (Respondent)
Representation:	Counsel: Ms S. Duggan SC (Applicant) Mr I. Hemmings SC (Respondent)   Solicitors: Gadens (Applicant) Council of the City of Sydney (Respondent)
File Number(s):	11037 of 2014

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. D/2014/1147 for the Stage 1 building envelope of a mixed use development, comprising residential units across four buildings and a retail street frontage to Harris Street (the proposal) at 485-521 Harris Street, Ultimo (the site) by the Council of the City of Sydney (the Council).

2. The appeal was subject to mandatory conciliation on 20 February 2015, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 13 March 2015, pursuant to s 34(4) of the LEC Act.

Issues

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

• There is inadequate information provided with the application in relation to contamination, the driveway design, the gross floor area calculation and the competitive design process for Stage 2.

• The proposal is an overdevelopment of the site as it is contrary to the provisions of State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Development (SEPP 65); a variation of the height of buildings development standard for the site is not adequately justified; the proposal exceeds the maximum height in storeys control; the proposal does not provide a considered response to the surrounding context and streetscape.

• The proposal does not demonstrate that the Stage 2 development will provide adequate internal amenity to the future occupants, including adequate building separation, visual and acoustic privacy, solar access, cross ventilation and deep soil.

• The layout of the proposed apartments results in excessive building depths and a large number of units being accessed from a single core, creating amenity and building design issues.

• Elements of the proposal do not enhance the public domain.

4. The Council’s contentions were resolved, to the Council’s satisfaction, by amendments made to the proposal and the agreed conditions of consent (exhibit 11).

The site and its context

5. The site is 5,322m2 in area, bounded to the east by Harris Street and to the west by Bulwara Road and is located within the block bounded by Quarry Street to the north and William Henry Street to the south.

6. The site contains a 2-4 storey commercial office building. The Bulwara Road elevation presents as a single storey building, with a 2-3 storey building behind. The site currently has vehicular access at the southern boundary of the Harris Street frontage.

7. There are rows of two storey terrace houses fronting Bulwara Road and Kirk Street, to the north of the site.

8. The four storey ‘Burlinson Gardens’ residential apartment building is on the opposite side of Bulwara Road.

9. The Ultimo Community Centre, on the corner of Bulwara Road and William Henry Street, is to the south of the site.

10. The Ian Thorpe Aquatic Centre is on the opposite side of Harris Street.

Background and the proposal

11. The original proposal was amended following the termination of the conciliation conference and leave was granted by the Court on 2 April 2015 for the applicant to rely on the amended proposal.

12. The amended proposal was further amended prior to the hearing and leave was granted by the Court, during the hearing, for the applicant to rely on the further amended proposal (‘the proposal’ exhibits A and E).

13. On the basis of a submission made by the resident objectors that they had not had sufficient time to fully consider the amendments made in the proposal, the parties agreed to the proposal being re-notified to the resident objectors and the hearing was adjourned for 3 weeks to provide the time necessary for this process to occur.

14. The proposal is comprised of the following elements:

• A six storey building fronting Bulwara Road, with the upper three storeys setback 4m from the street boundary and 9m from the northern boundary; and a basement level below the street level of Bulwara Road with storage on the Bulwara Road side and apartments facing onto the internal courtyard;

• A nine storey building fronting Harris Street, with the upper four storeys setback 2.5m from the street boundary; the upper three storeys stepping at the southern end down to seven storeys; and retail on the portion of the ground floor fronting Harris Street;

• A seven storey building on the southern side of the site; between the Bulwara Road building and the Harris Street building;

• A four storey building within the internal courtyard and adjacent to the northern boundary;

• Two storeys of basement parking accessed from Harris Street at the northern corner of the site, adjacent and to the south of the pedestrian laneway; and

• A pedestrian laneway connecting the southern end of Kirk Street to Harris Street.

Planning framework

15. The application is made pursuant to s 83B of the EPA Act, as follows:

Staged development applications

(1) For the purposes of this Act, a staged development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications. The application may set out detailed proposals for the first stage of development.

(2) A development application is not to be treated as a staged development application unless the applicant requests it to be treated as a staged development application.

(3) If consent is granted on the determination of a staged development application, the consent does not authorise the carrying out of development on any part of the site concerned unless:

(a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or

(b) the staged development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent.

(4) The terms of a consent granted on the determination of a staged development application are to reflect the operation of subsection (3).

16. Section 83D of EPA Act provides the following in relation to the status of staged development applications and consents:

Status of staged development applications and consents

(1) The provisions of or made under this or any other Act relating to development applications and development consents apply, except as otherwise provided by or under this or any other Act, to a staged development application and a development consent granted on the determination of any such application.

Note. Applicable provisions in respect of staged development applications include provisions relating to designated development, integrated development and regulations made under section 105.

(2) While any consent granted on the determination of a staged development application for a site remains in force, the determination of any further development application in respect of that site cannot be inconsistent with that consent.

(3) Subsection (2) does not prevent the modification in accordance with this Act of a consent granted on the determination of a staged development application.

Note. See section 95 (2) which prevents a reduction in the 5 year period of a development consent.

17. The State Environmental Planning Policy No. 55 – Remediation of Land (SEPP 55) includes the following at cl 7:

Contamination and remediation to be considered in determining development application

(1) A consent authority must not consent to the carrying out of any development on land unless:

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

(2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.

(3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation.

(4) The land concerned is:

(a) land that is within an investigation area,

(b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out,

(c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital—land:

(i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and

(ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).

18. The site is zoned B4 Mixed Use pursuant to Sydney Local Environment Plan 2012 (LEP 2012) and the proposal is permissible with consent. The objectives of the B4 Mixed Use zone are:

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To ensure uses support the viability of centres.

19. The height of buildings development standard for the site is 22m (Height of Buildings Map HOB_008 LEP 2012) and the relevant objectives of the height of buildings sub-cl 4.3(1) of LEP 2012 are:

(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,

(d) to ensure appropriate height transitions from Central Sydney and Green Square Town Centre to adjoining areas,

20. The floor space ratio (FSR) development standard for the site is 4:1 (FSR Map Sheet FSR_008 LEP 2012) and the relevant objectives of the FSR sub-cl 4.4(1) of LEP 2012 are:

(a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future,

(b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic,

(c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure,

(d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality.

21. Clause 4.6 Exceptions to development standards of LEP 2012 permits variation of the development standards, as follows:

(1) The objectives of this clause are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

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

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

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

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

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

(a) the consent authority is satisfied that:

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

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

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

22. The site is adjacent to a heritage conservation area (C69, Heritage Map HER_008 LEP 2012) located between Bulwara Road and Kirk Street, to the north of the site. Clause 5.10 of LEP 2012 includes the following at sub-cll (4) and (5):

(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. 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).

(5) Heritage assessment

The consent authority may, before granting consent to any development:

(a) on land on which a heritage item is located, or

(b) on land that is within a heritage conservation area, or

(c) on land that is within the vicinity of land referred to in paragraph (a) or (b),

require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

23. Clause 6.21 of LEP 2012, Design Excellence, will apply to future Stage 2 development applications, which will be required to demonstrate design excellence, pursuant to cl 6.21. Sub-clause 6.21(9) defines design excellence as a design for a building (or alteration) which is the winner of a competitive design process and one that the consent authority is satisfied exhibits design excellence. Condition (7)(a) of Annexure A requires that a competitive design process be conducted, consistent with the requirements of LEP 2012 and Sydney Development Control Plan 2012, prior to the lodgement of a Stage 2 development application.

Public submissions

24. Five resident objectors provided evidence on site at the commencement of the hearing and their objections to the proposal can be summarised as follows:

• The amendments made to the proposal were provided to the resident objectors on Friday 12 June 2015 and this did not provide sufficient time for them to properly consider the changes and the proposal should therefore be re-notified;

• The proposal raises the Bulwara Road elevation from five storey to six storeys, when compared to the amended proposal (notwithstanding that the original proposal was seven storeys fronting Bulwara Road), which will increase the amenity impacts on the residential flat building on the opposite side of Bulwara Road, including overlooking, noise and overshadowing;

• The proposal will provide opportunities to overlook the back yards of the terrace houses to the north of the site and the proposal should retain the masonry wall on the northern boundary to an approximate height of 6m to provide privacy between the proposal and the existing terrace houses;

• The residents of the terrace house fronting Bulwara Road and directly to the north of the site are concerned that the removal of the brick wall on the site, adjacent to the shared boundary, will damage their dwelling and impinge on the amenity and use of their property during demolition and construction;

• The provision of the pedestrian connection and turning area at the southern end of Kirk Street is a welcome benefit to the residents in Kirk Street.

25. Following the adjournment of the hearing, the proposal was placed on notification between 19 June and 4 July 2015 and 32 submissions were received. The issues raised in those submissions, in addition to those summarised above, are as follows:

• The proposal will result in the loss of views of fireworks on the harbour from level 5 of 460 Jones Street, Ultimo;

• The communal roof top terrace will result in an acoustic impact on the residents of ‘Burlinson Gardens’.

Expert evidence

26. Expert evidence was provided by Ms Jessica Symons (planning) and Mr Michael Zanardo (urban design) on behalf of the Council and by Mr Andrew Darroch (planning) and Mr Rohan Dickson (urban design) on behalf of the applicant.

Consideration

27. Council’s experts gave an undertaking to the Court that all merit issues raised in the Council’s contentions are, in their view, satisfactorily addressed by the proposal and the agreed conditions of consent.

28. In regard to the issue of the contamination of the site, the parties agreed that cl 7 of SEPP 55 is only triggered by a future Stage 2 development application and this issue not required to be considered for the Stage 1 building envelope. This is set out by condition 9 of Annexure A, as follows:

(9) CONTAMINATION

This consent does not authorise the carrying out of any development (including demolition). Any consent for Stage 2 development must comply with the requirement of SEPP 55.

29. In regard to the issue raised concerning the design of the driveway, the experts agreed that conditions 7(c)(vi) and (xii) of Annexure A adequately address the issue raised and that the future Stage 2 development application will trigger the requirement for a written endorsement and concurrence from the NSW Roads and Maritime Services (RMS), as set out by condition 8 of Annexure A, as follows:

(7) DESIGN EXCELLENCE AND COMPETITIVE DESIGN PROCESS

(c) The design brief for the competitive design process shall incorporate the following requirements:

(vi) Driveway access must only be from Harris Street to the north end of the building (but not from within the proposed pedestrian laneway);

(xii) Any driveway to the basement and ground floor levels shall be set up 300mm above gutter level;

(8) LEFT IN AND LEFT OUT ACCESS ARRANGEMENTS TO HARRIS STREET

As part of any Stage 2 Development Application, the Applicant shall obtain written endorsement and concurrence from RMS for the left in and left out access arrangements via a splitter island to Harris Street.

30. In regard to the issue raised concerning the original proposal being an overdevelopment of the site, the experts agreed that they are now satisfied that the mass of the proposal is appropriately distributed around the site, with the majority of the bulk of the proposal being concentrated on the Harris Street frontage. The experts agreed that the building envelope fronting Bulwara Road, being setback 4m from the street boundary on the upper three levels, and the overall height of the Bulwara Road building envelope being below the maximum height of buildings development standard of 22m in LEP 2012, is an appropriate form on the Bulwara Road frontage.

31. In order for development consent to be granted for a development that contravenes a development standard in LEP 2012, I must be satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2012); that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2012) and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2012). The relevant objectives for the height of buildings, at sub-cl 4.3(1) of LEP 2012, are to ensure the height of development is appropriate to the condition of the site and its context, including buildings in heritage conservation areas, and to promote the sharing of views. The applicant’s written request for a contravention of the height of buildings development standard (exhibit D) justifies the breach of the building envelope fronting Harris Street on the basis that the mass of the proposal has been reduced elsewhere on the site in response to the context and to enhance the internal amenity of the future Stage 2 works and that this approach results in a more desirable environmental outcome. I accept the agreement of the experts that the mass of the proposal is appropriately distributed around the site and that the contravention of the height of buildings development standard by the building envelope fronting Harris Street (and the lift overruns on the Bulwara Road building) are justified and consistent with the height of buildings and the B4 Mixed Use zone objectives in LEP 2012 and that the applicant’s written request has adequately addressed that compliance with the height of buildings development standard is unnecessary in the circumstances.

32. Sub-clauses 6.21(7)(a) and (b) of LEP 2012 regarding the eligibility of a proposal demonstrating design excellence to be availed of a 10% increase in the numerical values permitted by the height of buildings and floor space ratio development standards for the site, will not apply to future Stage 2 development applications, as set out by condition 7(b) of Annexure A, as follows:

(7) DESIGN EXCELLENCE AND COMPETITIVE DESIGN PROCESS

(b) The proposal is not to exceed the maximum height and FSR approved by the Stage 1 building envelope, and is not eligible for a 10% design excellence uplift in height or FSR as specified in the design excellence strategy prepared by Planning Lab and dated 1 April 2015;

33. In regard to the issue raised of the inadequate internal amenity and excessive building depths of the original proposal, the experts are now satisfied that the proposed building envelope provides sufficient potential for adequate internal amenity, consistent with the requirements of SEPP 65 and the Residential Flat Design Code (RFDC), which will apply to future Stage 2 development applications and as set out by condition 7(c)(xvi) of Annexure A, as follows:

(7) DESIGN EXCELLENCE AND COMPETITIVE DESIGN PROCESS

(c) The design brief for the competitive design process shall incorporate the following requirements:

(v) Minimise snorkel apartments;

(xvi) The envelopes have been tested and can achieve 66% solar access and 58% natural cross ventilation. It is expected that a Stage 2 design excellence scheme would improve on these figures;

34. In regard to the issue raised concerning the enhancement of the public domain, the experts agreed on the imposition of the following conditions relating to the design of the future Stage 2 development to address Council’s contention:

(7) DESIGN EXCELLENCE AND COMPETITIVE DESIGN PROCESS

(c) The design brief for the competitive design process shall incorporate the following requirements:

(i) The Bulwara Road frontage of the site shall introduce fine grain built form and varied architectural character;

(ii) An awning is to be provided along the frontage of the Harris Street building.

(xv) Perimeter planting is to be provided to the level 4 terrace and roof garden on the Bulwara Road building (Building C) to 2400mm and returning to the northern face of the building at 1200mm;

(d) The detailed design of the development must exhibit design excellence.

35. In response to the concerns of the northern neighbour at 272 Bulwara Road regarding the impact of the future Stage 2 works on the structural integrity of their dwelling, the experts agreed that a condition be imposed on the consent that the design brief for the competitive design process incorporate a requirement to retain the full thickness of the existing common wall to 272 Bulwara Road, as follows:

(7) DESIGN EXCELLENCE AND COMPETITIVE DESIGN PROCESS

(c) The design brief for the competitive design process shall incorporate the following requirements:

(xiii) Retain the full thickness of the existing common wall to No. 272 Bulwara Road;

36. In response to the concerns of the occupants of the terrace rows to the north of the site regarding the possibility of occupants of the future Stage 2 development overlooking their backyards, the experts agreed on an appropriate height and design of the boundary wall between the proposed Bulwara Road building and the proposed Central building, as set out by conditions 7(c)(xiv) and (xviii) of Annexure A, as follows:

(7) DESIGN EXCELLENCE AND COMPETITIVE DESIGN PROCESS

(c) The design brief for the competitive design process shall incorporate the following requirements:

(xiv) The boundary wall between the Bulwara Road building (Building C) and the central building (Building D) should be 2m high of solid construction and a further 3m high screen of at least 50% openness above the ground floor of No. 272 Bulwara Road;

(xviii) The desire of the northern neighbours (Bulwara Roads and Kirk Street courtyards) for privacy should be provided.

37. In response to the issues raised by the submissions following the re-notification of the proposal, the planning and urban design experts agreed that condition 7(c)(ix) be modified to require a 2400mm planter to the western edge of the roof terrace of the Bulwara Road building, to prevent future occupants of the Stage 2 development from being able to overlook Bulwara Road and the terrace row to the north, as follows:

(7) DESIGN EXCELLENCE AND COMPETITIVE DESIGN PROCESS

(c) The design brief for the competitive design process shall incorporate the following requirements:

(xv) Perimeter planting is to be provided to the level 4 terrace and roof garden on the Bulwara Road building (Building C) to 2400mm and returning to the northern face of the building at 1200mm;

38. The experts agreed that sky views of fireworks over the harbour from level 5 of 460 Jones Street, Ultimo, would not be obstructed by the proposal.

Conclusion

39. I accept the agreement and evidence of the experts that the amendments to the proposal and the conditions of consent have satisfactorily addressed the contentions raised by Council regarding the original proposal. I am satisfied that it is appropriate to grant development consent to the Stage 1 building envelope.

40. Pursuant to sub-ss 83B(2) and (3) of the EPA Act, this consent does not authorise the carrying out of development on any part of the site unless consent is subsequently granted to carry out development on that part of the site, following a Stage 2 development application in respect of that part of the site.

Orders

41. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. D/2014/1147 for the Stage 1 building envelope of a mixed use development, comprising residential units across four buildings and retail at ground floor fronting Harris Street, is approved, subject to the conditions of consent at Annexure A.

3. The exhibits, other than exhibit 8, are returned.

____________

Susan O’Neill

Commissioner of the Court

11037 of 2014 O'Neill (C) (40.3 KB, pdf)

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Decision last updated: 24 July 2015