Azzurri Group Pty Ltd v Council of the City of Sydney

[2021] NSWLEC 1090

Land and Environment Court

New South Wales

Medium Neutral Citation:

Azzurri Group Pty Ltd v Council of the City of Sydney [2021] NSWLEC 1090

Hearing dates:

3 February 2021

Date of orders:

24 February 2021

Decision date:

24 February 2021

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The Orders of the Court are:

(1) The appeal is upheld.
(2) Development Application No. D/2020/325 for alterations and additions, including extending the lift shaft of Building 1 to access the rooftop for maintenance, to the approved commercial development at 40-42 Francis Street, Darlinghurst, is approved, subject to the conditions of consent at Annexure A.
(3) The exhibits, other than Exhibits 2, A, G and H, are returned.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to an approved commercial development – contributory building to heritage conservation area – exceedance of the height of buildings development standard

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 8.7

Land and Environment Court Act 1979 ss 34, 39

Sydney Local Environmental Plan 2012 cll 1.2, 4.3, 4.6, 6.21

Cases Cited:

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Category:

Principal judgment

Parties:

Azzurri Group Pty Ltd (Applicant)
Council of the City of Sydney (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
A Singh (Solicitor) (Respondent)

Solicitors:
Mills Oakley Lawyers (Applicant)
Council of the City of Sydney (Respondent)

File Number(s):

2020/156312

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. D/2020/325 for alterations and additions to an existing building to extend the lift shaft to Building 1 to access the rooftop for maintenance (the proposal), by the Council of the City of Sydney (the Council). The existing building, at 40-42 Francis Street, Darlinghurst (the site) is part of an approved redevelopment of existing buildings for commercial use (the approved development), at 40-50 Francis Street, Darlinghurst (the development site), currently under construction.

2. The appeal was subject to conciliation on 21 July 2020, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

3. Leave was granted by the Court on 25 November 2020 for the applicant to amend the application by relying on amended drawings.

4. The hearing commenced with an onsite view in the company of the parties and the planning experts and continued in person in Court following the site view.

Issues

5. The Council’s contentions can be summarised as:

• Additional access to the rooftop is unnecessary;

• The proposed lift shaft is not well integrated with the approved building envelope, resulting in excessive height and bulk, and defeating the objectives of the height of buildings development standard;

• The proposed lift shaft detracts from the design quality of the approved development and does not satisfy the requirements of cl 6.21 of the Sydney Local Environmental Plan 2012 (LEP 2012);

• The written request pursuant to cl 4.6 of LEP 2012 does not satisfy the requirements of cl 4.6(4)(a);

• The proposal is not in the public interest.

The site and its context

6. The site is on the corner of Francis and Yurong Streets, Darlinghurst. The site contains a four storey masonry building.

7. The development site has a frontage to Yurong Street of 18.105m, a corner splay of 1.335m and a frontage to Francis Street of 44.62m.

Background and the proposal

8. Development consent D/2014/1914/B for the redevelopment of 40-50 Francis Street, Darlinghurst issued on 27 April 2015 and modified on 13.3.20 is currently under construction. The redevelopment of 40-50 Francis Street, Darlinghurst includes alterations and additions to the existing buildings. The building the subject of this appeal is known as Building 1.

9. The applicant has unsuccessfully tried to obtain development consent for an extension of the lift shaft to provide lift access to the roof of Building 1 as part of previous applications.

10. The approved development is for commercial premises, including business premises, office premises and retail premises, according to the Council’s planning expert. The development consent for Building 1 includes alterations and additions to the existing Ground Floor, First Floor, Second Floor and Third Floor (Ex A). Each level is for office space with new toilets and stairs, and a glass lift and lift lobby in the south-eastern corner of the building accessed from Francis Street on the Ground Floor. The approved development for Building 1 includes plant and equipment on the flat roof, enclosed by a new brick parapet in the north-western corner at a height of RL 31.1 and a glass balustrade around the plant. The development consent includes stair access to the roof, adjacent to the lift shaft, and a glazed roof over the stair and void on the southern side of the lift shaft with no maximum height noted on the approved architectural drawing (Ex 1, f 591).

11. The development application for the proposal was lodged on 8 April 2020.

12. The proposal is to extend the lift shaft vertically to provide lift access to the roof of Building 1, for access to the approved plant by service personnel. The proposed lift is a Silenspro Vanguard III (Ex L) and the lift shaft is proposed to be glazed.

Planning framework

13. The aims of Sydney Local Environmental Plan 2012 (LEP 2012) include to achieve a high quality urban form by ensuring that the new development exhibits design excellence and reflects the existing or desired future character of particular localities, at cl 1.2(2)(j).

14. The site is zoned B4 Mixed Use pursuant to LEP 2012 and the proposal is permissible with consent. The objectives of the B4 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.

15. The height of buildings development standard for the site is 15m (cl 4.3 and Height of Buildings Map - Sheet HOB_015 of LEP 2012).

16. The relevant objectives of the height of buildings development standard, at 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

17. Clause 4.6 Exceptions to development standards of LEP 2012 is in the compulsory Standard Instrument – Principal Local Environmental Plan terms.

18. Building 1 is identified as contributory to the East Sydney Heritage Conservation Area (HCA) (Pt 2, Sch 5 to LEP 2012) and is adjacent to a heritage item, identified as Item 512 (Heritage Map - Sheet HER_015). Item 512 is identified as ‘Former St Joseph’s Kindergarten including interiors’. Clause 5.10(4) requires the consent authority, or the Court exercising the functions of the consent authority, to consider the effect of the proposal on the heritage significance of the HCA.

19. The design excellence clause applies to the proposal at cl 6.21(2) of LEP 2012. The relevant terms of the design excellence clause are:

6.21 Design excellence

(1) The objective of this clause is to deliver the highest standard of architectural, urban and landscape design.

(2) This clause applies to development involving the erection of a new building or external alterations to an existing building on land to which this Plan applies.

(3) 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.

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

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

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

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

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

Public submissions

20. Three written submissions are included in the Council’s bundle (Ex 1, tab 4) and I have considered the issues raised by those submissions.

Expert evidence

21. The applicant relied on the expert planning evidence of Andrew Darroch and the Council relied on the expert planning evidence of Bryan Li. The experts prepared a joint report (Ex 3). Mr Darroch briefly gave oral evidence.

Contravention of height of buildings development standard

22. The proposal has a maximum height of RL 33.95. The existing ground level beneath the approved lift shaft, at the time the application was lodged according to Mr Darroch, was the existing Ground Floor of Building 1 at RL 16.59 (Ex 1, f 520 and Ex B). Assuming the slab thickness was 150mm, the existing ground level was RL 16.44. The area has since been excavated for the construction of the approved lift shaft. The maximum height of the proposal is therefore 17.51m. The spot level of the ground in the passageway to the east of Building 1, adjacent to the position of the lift shaft, is RL 17.05 (Ex B). The Francis Street footpath adjacent to the existing building falls from RL 17.8 at the splay of the corner of the existing building to the east, adjacent to the approved entry to Building 1, to RL 17.16 (Ex B). The height of the proposed lift overrun compared to the Francis Street footpath closest to the lift shaft is 16.79m. The height of buildings development standard for the site is 15m.

23. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard (Annexure 2 to Ex 3).

24. Clause 4.6(4) of LEP 2012 establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] (Initial Action)). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a “jurisdictional fact of a special kind”, because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant’s written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows:

(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 Secretary has been obtained.

25. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2012 (Initial Action at [29]).

The applicant’s written request to contravene the height of buildings development standard

26. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant’s written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows:

(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

27. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant’s written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).

28. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (Wehbe) and repeated in Initial Action [17]-[21]:

• the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

• the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

• the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

• the development standard has been abandoned by the council;

• the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

29. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).

30. The applicant’s written request justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the numerical standard. The following grounds are relied on by the applicant in the written request:

• The heritage item, 44-46, 48 and 50 Francis Street, is lower than the permitted 15m and the form of the heritage item is retained in the approved development;

• The proposal is to provide lift access to the roof and plant on the roof of the contributory building and the plant will also serve the buildings that are the heritage item;

• Using a crane to access the plant on the roof of Building 1, instead of taking the lift to the roof of Building 1, would be difficult because the streets are narrow and busy, there are mature street trees around Building 1 and there are overhead power lines close to Building 1;

• The maximum height of the approved redevelopment of Building 1 is 14.3m above the footpath at the north-western corner and the only exceedance of the height of buildings development standard is the proposed lift shaft;

• There are other examples of lift shafts extending beyond a flat roof in the vicinity of the site and lift overruns and plant rooms on top of multistorey buildings are a common feature of contributory buildings throughout the HCA;

• The character of the HCA is of large adaptively reused warehouses and factory buildings which exceed the height control with prominent lift overruns and roof top communal open space access;

• The height of the proposal is appropriate to the condition of the site and its context and is compatible with the height, bulk and scale of the existing buildings in the locality;

• The lift shaft is setback 3m from the Francis Street façade of Building 1;

• The proposed lift shaft is constructed from glass to limit its visibility and prominence; and

• The proposal results in minimal impacts on the amenity of adjoining development.

31. According to Mr Li, it is common for the plant of a commercial premises on the roof of a building to be accessed via a hatch. The approved development includes stair access to the roof of Building 1. The development consent for Building 1 included a significant exceedance of the floor space ratio development standard.

32. The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

33. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant’s written request defends the exceedance of the height of buildings development standard as a justified response to the retention of Building 1, identified as contributory to the HCA, and the adjoining heritage item. The approved plant area located on the roof of Building 1 is the plant and equipment for the approved development at 40-50 Francis Street, Darlinghurst and will serve the adjoining heritage item. I am satisfied that justifying the aspect of the development that contravenes the development standard in this way can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

34. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]).

35. I am satisfied that the proposal is consistent with objectives of the B4 zone and the height of building development standard for the following reasons:

• The approved development for commercial use contributes to the mix of compatible land uses and allows for the integration of suitable businesses into the locality because the proposal will facilitate a greater range of commercial uses to be able to be accommodated by the approved development by providing adequate access to plant and equipment that is capable of serving high tech commercial uses;

• The height of the proposal is appropriate to the condition of the site and its context, because it is consistent with the range of building heights in the vicinity of the site and the approved development is lower than the height of buildings development standard for the site, making the lift shaft a small and benign addition to the overall form of the approved development on the development site;

• The proposal maintains an appropriate height transitions between the existing contributory building the heritage item, and between the buildings in the heritage conservation areas. The proposal contributes to the adequate functioning of the plant so that it can serve the heritage item and allows for the buildings that make up the heritage item to be air-conditioned without the addition of infrastructure that can be detracting when imposed on heritage buildings;

• The proposal does not impact on views from surrounding development.

Consideration

36. I am satisfied that the proposal will not affect the identified heritage significance of the HCA or the adjacent heritage item. The lift shaft will be clearly discernible as a contemporary element sympathetically added to a contributory building. The location of the plant and equipment on Building 1 is an ideal location for the development site and allows for the servicing of the heritage item without having to find an acceptable location for plant and equipment on the site of the heritage item.

37. I am satisfied that the proposal does not interfere with the high standard of architectural and urban design achieved by the approved development, and that the proposal coupled with the approved development exhibits design excellence. The proposal includes materials and detailing appropriate to the building type and location.

38. I accept Mr Darroch’s evidence that the views from the sun (Ex D) demonstrate that the additional overshadowing caused by the proposal on the northern windows of the apartments within 37-39 Frances Street are minor and have minimal impact on the amenity of those affected apartments.

39. I accept the applicant’s version of the conditions of consent (Ex H) which include an additional condition to the Council’s version (Ex 4) requiring the lift to be programmed to return to a level below the rooftop in order to maximise the transparency of the glass lift structure above the roof.

Orders

40. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. D/2020/325 for alterations and additions, including extending the lift shaft of Building 1 to access the rooftop for maintenance, to the approved commercial development at 40-42 Francis Street, Darlinghurst, is approved, subject to the conditions of consent at Annexure A.

3. The exhibits, other than Exhibits 2, A, G and H, are returned.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (162416, pdf) 

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Decision last updated: 24 February 2021