Baker Kavanagh Architects Pty Ltd v Sydney City Council
[2014] NSWLEC 1003
•14 January 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Baker Kavanagh Architects Pty Ltd v Sydney City Council [2014] NSWLEC 1003 Hearing dates: 2-3 December 2013 Decision date: 14 January 2014 Jurisdiction: Class 1 Before: Morris C Decision: See paragraph 77
Catchwords: Development Application, Legislation Cited: Environmental Planning and Assessment Act 1979;
State Environmental Planning Policy (Infrastructure) 2007;
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development
State Environmental Planning Policy No. 55 - Remediation of Land;
Sydney Local Environmental Plan 2012;
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005;Texts Cited: Sydney Development Control Plan 2012 Category: Principal judgment Parties: Baker Kavanagh Architects Pty Ltd (Applicant)
Sydney City Council
(Respondent)Representation: Counsel
Ms S Duggan SC
(Applicant)Ms A Pearman
Mr P Kapetas
(Respondent)
Solicitors
Mr M Sonter
Gadens Lawyers (Applicant)
Council of the City of Sydney (Respondent)
File Number(s): 10507 of 2013
Judgment
Baker Kavanagh Architects Pty Ltd is appealing the deemed refusal of Development Application D/2013/407 lodged with Sydney City Council on 2 April 2013 seeking consent to demolish an existing two storey commercial building and remove landscaping elements including a planter box, construct a three storey shop top housing development and three lot subdivision including the dedication of land for road widening. The plans of the proposal have been amended following a conciliation conference held under s34 of the Environmental Planning and Assessment Act 1979 (Act) before another Commissioner of this Court with the amended plans addressing a number of the council's initial contentions.
The remaining contentions in the case are the adequacy of waste management storage and servicing; the acceptability of the design of the development including safety and social dimensions; non-compliance with planning controls, in particular floor space ratio, building height and deep soil planting; adequacy of plans and whether the proposal is in the public interest. The council did not press a contention regarding noise impacts.
Whilst not raised in the council's contentions, the issue of the dedication of land and whether the value of that land should be offset against s94 contributions also arose in response to draft conditions of consent filed by the council.
The site and its context
The site is an irregular shaped allotment with its primary frontage to Cathedral Street and secondary frontage (rear) to Junction Lane, which is closed to vehicle traffic. Total area of the site is 318.5sqm. Charles Street intersects Junction Lane to the immediate north of the site.
The Eastern Suburbs Railway viaduct immediately adjoins the south-western boundary of the site. The area beneath and adjacent to that viaduct is paved and landscaped and used as public open space however, remains in the ownership of RailCorp. It is known as Tom Uren Place. The Woolloomooloo Police Station and a pharmacy are located to the west of the viaduct in an L-shaped building at the corner of Cathedral and Bourke Streets.
A one and two storey building occupies approximately 50% of the site and sits in the south-eastern portion. The remaining unbuilt portion to the rear comprises brick paving, a raised garden bed containing plantings, a lamp post and garbage bin. This rear portion of the site currently forms part of Tom Uren Place, and until recently was part of the larger parcel of land owned by RailCorp. The site, known as Lot 71 DP 1171393, No. 166 Cathedral Street, was subdivided from the Railcorp land in a Plan of Subdivision registered on 14 December 2011.
The site benefits from an easement over the Railcorp land where the existing building encroaches over the south-western boundary by up to 1.915m. The terms of that easement are that it would be extinguished when the awning structure is demolished.
A small supermarket is located within a two storey building to the north of the site near the intersection of Charles Street and Junction Lane. Land owned by NSW Land and Housing Corporation is located further to the north and is used for residential purposes, primarily in the form of terrace housing. A shop and café with residential use above is located on a site to the north-east known as No 91 Forbes Street. Whilst the building is oriented east to Forbes Street the ground floor rear courtyard has been converted into a café, which operates from the Charles Street frontage.
All of the commercial uses that front Tom Uren Place, including the police station, close at night.
Private terrace houses used for residential and also commercial uses are located to the east of the site. A three storey former hotel building is located on the corner of Cathedral and Forbes Streets however the majority of buildings in the vicinity of the site are two storey.
On the southern side of Cathedral Street, adjacent to the site is an at-grade carpark, a row of terrace houses and a public park that includes ablution facilities.
It is common ground that Tom Uren Place is used as an active pedestrian link and community focal point throughout the day and for rough sleeping at night.
History of development approval
The Council's amended Statement of Facts and Contentions provides details of the history of the site and its surrounds and is relevant to the issues in the case. This is as follows:
The existing building was constructed between 1981 and 1985. The subject site originally formed part of the Riley Estate and was subdivided into three allotments in the mid-nineteenth century. In 1968 these allotments were acquired by the Commissioner for Railways as part of a larger acquisition of land to enable the construction of the Eastern Suburbs Railway Line. Following the acquisition of the land, the three mid-nineteenth century terrace houses that the site contained were demolished.
In 1974 an agreement, referred to as 'the Tripartite Agreement 1974/1975' was entered into between the Commonwealth and State Government relating to the allocation of funding for an approved program for the urban renewal of Woolloomooloo. The subject site was identified as land for business purposes.
Construction of the Eastern Suburbs Railway was completed in 1974. Since 1978 a road closure has been in place along Forbes Street, extending between Cathedral Street and Nicholson Street, created under s169(A) of the Local Government Act 1919. Part of Junction Lane, extending between Bourke Street and Forbes Street, was included in this road closure. Charles Street was acquired by the Housing Commission of NSW in 1978.
In 1981 the NSW Land and Housing Corporation entered into a lease with RailCorp to lease part of RailCorp's landholdings to establish a community centre, including the subject site. The lease also included the supermarket to the rear of the site and the embellishment of recreation space.
In 1996 Council erected a plaque within part of Junction Lane, to the north west of the subject site, naming Tom Uren Place.. ....
RailCorp sold the site to the current landowner in June 2012.
Background and the proposal
The original development application was lodged on 2 April 2013 and initially sought approval to demolish all existing site improvements and construct a shop top housing development comprising at ground floor level 1 commercial/retail tenancy addressing Cathedral Street, one live/work commercial/retail tenancy addressing the RailCorp land, 3 live/work commercial tenancies addressing Junction Lane and parking for 3 cars and 6 bicycles within rear courtyards accessed from Junction lane. At first floor level, 4 work/live apartments were proposed with attic areas providing 3 bedrooms and ensuites for apartments below.
Following the conciliation conference, the applicant was granted leave by the Court to rely on amended plans. The proposal now involves:
- A ground floor retail area (unit 4) fronting Cathedral Street;
- Three ground floor retail areas connected to two storey dwellings above fronting Junction Lane (units 1-3);
- Subdivision of the land into 3 allotments;
- Dedication of an area of land at the northern end of the site as road widening to increase the width of Junction Lane adjacent to the site and at the entry to units 1-3.
Proposed Lot 1 would have an area of 80.5sqm. It would contain unit 1 which comprises ground floor retail floor space of 70sqm, staff amenities area and storeroom with the living, bathroom and laundry area and a curved terrace at first floor level and a bedroom and ensuite at the upper level. Access to the upper residential levels is only available through the retail space.
Proposed Lot 2, with an area of 99.9sqm, contains a larger retail area (93sqm) and a two bedroom unit over two levels with a skylight and light well providing light and ventilation to internal rooms and a terrace at the first floor level at the northern end of the allotment.
Proposed Lot 3, having an area of 119.7sqm, is the eastern allotment and would contain a retail area of 59sqm fronting Junction Lane (unit 3) and a separate retail space of 39.5sqm fronting Cathedral Street (unit 4). The first floor area comprises living spaces, bathroom and bedroom areas with a terrace at the northern end and a balcony fronting Cathedral Street. A second bedroom and ensuite are provided on the second floor.
The building has been designed to have active frontages to Junction Lane with full height/width shopfronts and doorways servicing shops 2 and 3 and a doorway and three windows serving shop 1. These frontages are curved to assist in providing sightlines around the structure and incorporate a narrow awning above the larger windows and doorways that would encroach the proposed road widening.
The façade of the building fronting Cathedral Street has been designed as a modern interpretation of a terrace building to continue the scale of the adjacent buildings. The third storey is located within the centre of the site in an attempt to reduce the building's bulk.
The existing planter bed within the site would be demolished with the remainder retained and would therefore abut the western wall of the building. That wall is proposed to be constructed to the boundary and would be a solid wall with vertical blind window elements. A planter box is proposed around the edge of the first floor balconies. This is the only landscaping incorporated in the design.
The planning controls
The site and all land that it adjoins including Tom Uren Place, is zoned B1 Neighbourhood Centre under Sydney Local Environmental Plan 2012 (LEP). Under that plan, Shop top housing means one or more dwellings located above ground floor retail premises or business premises and is permitted with consent in the B1 zone.
The objectives of the zone are:
- To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood.
- To allow appropriate residential uses so as to support the vitality of neighbourhood centres.
The LEP contains a number of development standards. Those relevant to the application are Clause 4.3 Height of buildings, with a maximum height of 15m permitted. The development complies with this control. Clause 4.4 establishes Floor Space Ratio (FSR) standards with a maximum FSR for the site of 0.6:1. The FSR of the proposal is 1.72:1 so exceeds the development standard. Clause 4.6 provides for exemptions to development standards and, those sections relevant to the application are:
(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.
(5) In deciding whether to grant concurrence, the Director-General must consider:
(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and
(b) the public benefit of maintaining the development standard, and
(c) any other matters required to be taken into consideration by the Director-General before granting concurrence.
The application has been accompanied by a written objection to the FSR development standard as provided for in clause 4.6(3). Consideration of this matter is provided later in this judgment.
Clause 6.21- Design excellence, as relevant to the application states:
(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,
(b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain,
(c) whether the proposed development detrimentally impacts on view corridors,
(d) how the proposed development addresses the following matters:
(i) the suitability of the land for development,
(ii) the existing and proposed uses and use mix,
(iii) any heritage issues and streetscape constraints,
(iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,
(v) the bulk, massing and modulation of buildings,
(vi) street frontage heights,
(vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity,
(viii) the achievement of the principles of ecologically sustainable development,
(ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network,
(x) the impact on, and any proposed improvements to, the public domain,
(xi) the impact on any special character area,
(xii) achieving appropriate interfaces at ground level between the building and the public domain,
(xiii) excellence and integration of landscape design.
The adjoining terrace houses (168-172 Cathedral Street) including interior and the former hotel at 174 Cathedral Street are listed as local items of environmental heritage under the LEP. The site is within the Woolloomooloo Heritage Conservation Area. The council has raised no heritage contentions.
Clause 87 of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) applies to the development due to the site's proximity to the rail corridor and requires consideration of the impact of rail noise and vibration on the residential components of the development. The applicant has demonstrated compliance with the noise standards included in subclause (3) and this has satisfied the council's original contention regarding noise.
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 and State Environmental Planning Policy No. 55 - Remediation of Land also apply to the site however no contentions are raised in relation to these plans.
Sydney Development Control Plan 2012 (DCP) also applies to the site and, relevant to the application, includes a locality statement for Woolloomooloo; sections on general provisions including public domain elements; active street frontages; promotion of safety through design of buildings; waste management; height in storeys; setbacks; amenity; deep soil; fine grain and architectural diversity and articulation. The locality statement reads as follows:
This locality is bounded by Cowper Wharf Road to the north, Palmer Street to the west, the Victoria Street/Brougham Street cliff edge to the east, and the rear of lots along William Street to the south.
The area is to maintain its low scale residential character below the tree canopy to maintain district views between the Domain and Kings Cross.
Bourke Street will become a mixed use corridor with street activity. Heritage buildings are to be respected by maintaining the predominant street wall height along Bourke Street. The mix of building types and heights in the area south of Cathedral Street acknowledge the mix of small and large lots, protect the built
heritage and form a transition to the commercial spine on William Street.
The Cowper Wharf Road centre is to evolve as a significant tourism, entertainment and dining district. The carpark at the intersection of Cathedral and Bourke Streets provides an opportunity for high quality development and uses including local
(amenity) shops. Integration of the rail viaduct lands in this location is encouraged.
Plunkett Street Public School and Sydney Distance Education High School provide landscaped areas that contribute to the vegetation and semi-publicly accessible open space in a densely built area and should be maintained.
Principles
(a) Development must achieve and satisfy the outcomes expressed in the character statement and supporting principles.
(b) Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes.
(c) Maintain district views over Woolloomooloo from high ground of the Domain and Art Gallery to Kings Cross.
(d) Maintain the low scale residential uses and school in the centre.
(e) Encourage the redevelopment of the medium scale buildings (6 storeys) along Palmer Street and the Eastern Distributor to shape this an important vehicular entry into eastern Sydney.
(f) Encourage development along Bourke Street with new uses, street activity and improvements along the rail viaduct. The street wall is to define the street edge consistent with existing heritage.
(g) Continue the mix of building types and heights south of Cathedral Street to reflect the mix of small and large lots, protect its heritage and create a transition to the commercial spine on William Street.
(h) Encourage built form that relates to the topography of the neighbourhood. Maintain taller buildings along the ridges and the lower scale built form in the centre of the neighbourhood.
(i) Encourage high quality redevelopment of vacant lands along Palmer Street.
(j) Encourage the western side of Bourke Street as a mixed use corridor connecting the existing centre at Cowper Wharf Road and the emerging centre at Cathedral Street.
(k) Encourage a mix of uses south of Cathedral Street and active uses along Bourke and Forbes Street to improve pedestrian amenity and activity between William Street and Woolloomooloo.
Public Domain is defined in the DCP as:
Refers to areas of the City in which access to and use of is available for any member of the public. Public domain typically includes parks, plazas, footpaths and streets. Public domain elements of the City are typically controlled by the City of Sydney.
The objectives of clause 3.2 - Defining Public Domain are to enhance the public domain by ensuring adequate sun access to publicly accessible spaces and considering public views.
The provisions require that buildings are not to impede views from the public domain to highly utilised public places, parks etc. Subclause 3.2.2 requires development to address the street and public domain and has the following objectives, relevant to the application:
(a) Ensure that development contributes to the activity, safety, amenity and quality of streets and the public domain;
(b) Present appropriate frontages to adjacent streets and public domain in terms of scale, finishes and architectural character.
(c) Provide legible and accessible entries from the street and public domain.
(d) ...
(e) ...
(f) Ensure that in areas outside of Central Sydney new development relates to neighbouring buildings that define the street and public domain.
(g) Minimise blank walls at the ground level.
The Cathedral Street frontage of the site is identified in the Active frontages map in the DCP. Clause 3.2.3 requires active frontages to street to reinforce the vitality and liveliness of the public domain so activities within buildings can positively contribute. The objectives of the clause are:
(a) Ensure ground floor frontages are pedestrian oriented and of high design quality to add vitality to city and village streets;
(b) Provide fine grain frontages at ground level;
(c) Provide continuity of ground floor shops along streets and lanes within Central Sydney and other identified locations.
(d) Allow for active frontages in other non-identified locations to contribute to the amenity fo the streetscape.
(e) Encourage frequent building entries that face and open towards the street.
Clause 3.13.1 of the DCP has the objective of providing a safe environment and minimising opportunities for criminal and anti-social behaviour.
The relevant objective of Section 3.14 - Waste is to ensure waste from within developments can be collected and disposed in a manner that is healthy, efficient, minimises disruption to amenity, and is conducive to the overall minimisation of waste generated. In the case of mixed use developments, the waste handling, storage and collection systems for residential and commercial waste are to be completely separate an self-contained and provided with easy access from the storage area to nominated collection point. Cathedral Street is the closest collection point however, without the legal entitlement to use the RailCorp land, the tenants of units 1-3 would be required to wheel their bins along Junction Lane and Forbes Street to the collection point, a distance estimated by the experts, to be in the vicinity of 60-80m.
In addition to the development standard for height contained in clause 4.3 of the LEP, the DCP contains building height controls for residential flat, commercial and mixed Use Developments in Section 4.2. The objective of this control is to ensure that the height in storeys and street frontage height in storeys reinforces the existing or future neighbourhood character. The maps identify the maximum height in storeys for the site as one storey and maximum street frontage height to both Cathedral Street and Junction Lane as 2 storeys. The height of the development at the Cathedral Street frontage is 2 storey and to Junction Lane, one storey. The central portion of the building rises to 3 storeys so does not comply with the storey control however, at approximately 11.6m to ridge, does comply with the 15m development standard for height contained in the LEP. Clause 4.2.2.1 calls for setbacks above the street frontage height of a minimum of 3m for residential above non-residential and a rear setback and alignment to be consistent with adjoining buildings. In areas where corner buildings are typically built to the street boundary on one or more frontages, new development may also build to the boundary and, where the site boundary includes a splay at the corner, the building is to be built to that boundary at ground level.
The control for deep soil is contained in clause 4.2.3.6 of the DCP and requires a minimum of 10% of the site to be deep soil. No provision has been made for any deep soil planting areas within the proposed development.
The evidence
The hearing commended on site with evidence heard from a number of objectors to the proposal. In addition, legal representatives appeared on behalf of RailCorp and Land and Housing Corporation. Both agencies had objected to the original proposal, RailCorp on the basis that it relied on light and ventilation being available from its land and that this would not always be available, particularly in the event of maintenance works being undertaken to the viaduct. Land and Housing Corporation objected to the use of Junction Lane for vehicle access and, in correspondence dated 29 October 2013 and included in the council's bundle of documents, Exhibit 2, advised that its concerns had been addressed through the amended plans and request that a condition prohibiting vehicular access for the purpose of rubbish collection, postal deliveries and other related services across Charles Street. Similarly, conditions that reflect Railcorp's requirements have been incorporated into the draft without prejudice consent conditions, Exhibit 7.
The issues raised by objectors are summarised as follows:
- Contrary to expectations of the tripartite agreement and masterplan;
- RailCorp should not have sold off the land;
- Proposal creates barriers and does not open the space thereby creating safety concerns;
- Reduction in public open space;
- Area is very densely populated by homeless people;
- Important thoroughfare;
- Loss of important trees;
- Overdevelopment of the site.
Expert town planning evidence was heard from Mr A Darroch for the applicant and Mr J Mead for the council with Mr R Dickson (applicant) and Ms K Castellanos providing Urban Design Evidence.
Urban Design
The experts agree that the character in the centre of the neighbourhood mainly within the B1 zone is to maintain a low scale character, that a change in scale generally occurs at Cathedral Street where the northern part of the precinct present a more consistent 1 storey built form with occasional 3 storey elements (mainly on corner locations) while the southern part of the precinct presents (up to the rear of lots facing William Street) a more varied scale of buildings in type, height and footprint; that a 3 storey scale on the northern side of Cathedral Street is more of the exception than the norm; that there is potential for a partial third storey as long as the proposed volume is sympathetic with the surrounding built form, is setback from the street wall height to reduce its apparent bulk and scale as seen from the public domain and results in a pleasant built form. They also agree that the adjacent land to the west is publicly accessible land under the ownership of RailCorp.
These experts have summarised the contentions relevant to their expertise as being the response to context; built form and internal amenity; bulk and scale; landscape and deep soil and safety and have addressed these issues in the Joint Report, Exhibit 6 in the proceedings. Ms Castellanos says that the proposal does not respond well to the local context because it fails to provide an appropriate built form response with respect to the location of the bulk of the third storey in relation to the ridge of adjacent existing built forms which are two storey street wall height and pitched roof. She considers the third storey to be located in an anomalous place with regard to the street frontage resulting in an odd shape not characteristic of the locality, that the development is not fine grain as it proposes a greater footprint to that of the existing built form to the north of Cathedral Street, forward from the median setback line of the adjacent terrace housing to the east and does not respond to the existing network of open space because it presents a large unarticulated blank wall to the adjacent publicly accessible space.
Mr Dickson disagrees and says the bulk and scale of the proposed built form is consistent with the character of the adjoining heritage item and the conservation area it is located within, responds well to the context as the upper level is setback more that 3m maintaining the two storey consistent with the character of the locality; the upper level is contained within the roof structure, which has a height consistent with the adjoining development to the east; the western end is articulated into smaller elements at a scale that reflects the uses of the building and its various components and its location relative to the adjoining pedestrian and outdoor spaces. He considers the development is fine grain and that the western façade is not identified as an active frontage on the DCP map however that wall comprises three parts: a curved part to the north, a straight section varying in height 12m long and a splayed section 7m long with windows in the curved section, vertical reliefs (blank windows) in other sections and varying wall heights.
Ms Castellanos considers a more appropriate solution for the site would be to provide a minimum 3m setback to the splayed north-western boundary of the site and has prepared a sketch, Appendix D to the joint report. That sketch provides for stepped active frontages for units 1, 2 and 4 to Cathedral Street with the area between the shopfront and property boundary developed as a frontyard/spillout space. An access pathway approximately 1.5m wide would be provided within the site adjacent to the splay boundary. That portion of the building erected to the western property boundary is also shown as an active frontage. She also advocates a setback to Junction Lane, compliant with the median setback control to provide a greater area for spill over cafes with the added benefit being more visible from Tom Uren Place, providing a greater separation to the existing supermarket and café at the intersection of Charles Street and Junction Lane. The purpose of her alternate design is twofold, to increase the number of windows and therefore surveillance opportunities and to achieve design excellence through the use of materials and articulated elevations that provide amenity to pedestrians.
Mr Dickson says that the land to the west of the site may, at some time be developed and for that reason the alternate design proposed by Ms Castellanos may provide a 3m wide pedestrian space that may, in at some time, not lead anywhere and not be safe and that the frontages of those units facing this space will have no actual street frontage. He says that the alternate proposal is unnecessary, unsafe, provides places for concealment and it is more appropriate to get the buildings to address the key open spaces and to get as close as you can to those spaces. The building provides surveillance to appropriate areas and that the only spaces that cannot be directly overlooked from the development are readily observed from Cathedral Street.
Ms Castellanos says the FSR for the site is excessive and not reflective of the built form of neighbouring sites. It is much bulkier covering the site almost to its entirety and leads to internal amenity issues due to the excessive depth and site coverage that eliminates any possibility for tree retention of replacement and requires the provision of light wells and skylights. Mr Dickson disagrees and says the DCP controls do not require the development to mimic the alignments of adjoining buildings and that the resulting roof form while similar in scale and proportion step back into the middle of the site and clearly doesn't align however it does respond to the side boundary alignment and rail alignment.
Ms Castellanos says that a proposal that was compliant with the FSR would be capable of achieving the required deep soil planting, and that the retention of some of the existing trees could add additional incentives for outdoor seating and further activation of the lane. Mr Dickson says that there are buildings in the locality that have one hundred percent site coverage, the proposed building alignment and form promotes surveillance and does not result in a substantive change to the landscape character.
Mr Dickson says that the development has the opportunity to enhance the security of the immediate area through maximising activity on the street. The four retail units on the ground floor will have entrances to both Cathedral Street and Junction Lane, and thus will address and encourage activity in these two streets for passive surveillance. This when combined with the residential units above, can provide for 24 hours of activation and surveillance for the site, as an improvement on the previous doctor's surgery that maintained business hours. The curved western façade from Junction Lane to Cathedral Street will also provide a line of sight between these two main roads and the space in between. He rejects that the alignment of the proposal will obstruct sightlines and increase opportunities for concealment. The extension of the ground floor to address Junction Lane and the addition of residential units will improve passive surveillance in the area and will not impact line of sight to the supermarket, thus enhancing safety and security from the existing conditions.
Ms Castellanos disagrees and says the blank walls contribute significantly to promote anti-social behaviour and that the proposed footprint does reduce the existing lines of sight because of the excessive site coverage that, by default, reduces the existing width of the visual links between the police station and Charles Street, between Tom Uren Place and Junction Lane and says a more compliant development would retain more of the existing sightlines.
Planning contentions
The experts agree that Tom Uren Place has not been zoned as RE1 Public Recreation under the LEP and had, under the previous environmental planning instrument that applied to the site, South Sydney LEP 1998 been in Zone 10 - Mixed Uses, nor has it been identified for acquisition by the council for public open space. They also agree that the zone objectives do not reflect the need to provide open space and that, because subdivision is proposed, the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) does not apply.
They agree that the Woolloomooloo Locality Statement contained in the DCP encourages the integration of the rail viaduct lands and also envisages an emerging centre at Cathedral Street connecting with the existing centre at Cowper Wharf Road as a mixed use corridor. Also agreed is that the building height is appropriate however Mr Mead says the height should be used more effectively to enable a reduction in the building footprint.
They describe the immediate vicinity of the site as a harsh and socially challenging environment with it commonly accommodating rough sleepers and homeless persons at night and agree that the existing landscaped areas frequently attract rough sleepers, that the location is quite unique in the City of Sydney and that this social character has been prevalent for many years and is unlikely to change given the public shower facilities located directly opposite and the proximity to the Matthew Talbot Hostel. For these reasons they agree that surveillance and promotion of safety in design is critically important in any redevelopment. They also agree that if the site were fenced, the entry into Tom Uren Place from Junction Lane would be reduced to a width of around 2.0m measured from the north-western corner of the site to the awning to the supermarket.
They calculate the FSR of the existing building to be approximately 0.6:1 and agree that it has a poor interface with its surrounds, is compromised in its use by virtue of the harsh environment and its poor design response to those surrounds. The existing building is not only inappropriate but also contributes to and encourages anti-social behaviour. Mr Darroch says that because the existing FSR is at the maximum allowed under the LEP that no opportunity would exist to achieve the desired outcomes expressed in the DCP.
Calculations of FSR of the former hotel building at 174 Cathedral Street is in the order of 2:1 with the building built to all three street alignments, and being three storey on the southern portion of the site and single storey to the rear. They agree that the average setback to Junction Lane of Nos 168-174 is approximately 5.2m and all buildings have a FSR of less than the 1.5:1 controls that applies to that land under the LEP.
In their assessment of the FSR of the proposal, the area proposed to be dedicated to facilitate the widening of Junction Lane (19.7sqm) was excluded from the site area calculations. Ms Pearman, for the council, advises that this is not the usual practice of the council and that area should be included. Accordingly, the FSR would be 1.71:1, still in excess of the O.6:1 allowed under the LEP development standard.
Mr Darroch says that the proposal reflects the desired character of the locality and minimises adverse impacts on the amenity of the locality. He notes that no amenity contentions have been raised in the proceedings and says that there are no adverse amenity impacts on the surrounding buildings, dwellings or residents. Nor are contentions that the proposal is of a density, built form or land use intensity which would create adverse generation of vehicle or pedestrian traffic or that the intensity of the development is not commensurate with the capacity of the existing and planned infrastructure. The proposal responds to the form, scale and siting of the heritage item at 174 Cathedral Street which forms a bookend to the block and is a contributory building in this conservation area. It is similar scale, but lesser in height, similar in bulk but lesser in FSR and follows the same building alignment on the boundary as required by the DCP.
It is Mr Darroch's opinion that the proposal will encourage more residential uses above ground level with commercial and retail on ground level to promote the 24 hour casual safety and surveillance of the area. It also ensures active frontages and uses along the edges of open space to provide surveillance and that these areas will be treated in ways that contribute to the public amenity and safety of the surrounding streetscapes. He says that this is further enhanced by removing more than 35sqm of encroachments which currently facilitate anti-social behaviour and unsafe concealment opportunities and the proposal dedicates 19.7sqm of the site to the City of Sydney to become part of Junction Lane and resolve a very real and significant community issue with the narrowing of Junction Lane to less than 1.5m width at this critical entry point.
Mr Mead disagrees and says the proposal is out of context with the scale of existing surrounding development as well as the desired future character promoted by the FSR control and those contained within the DCP. The site coverage of the proposal and setback to Junction Lane, which strongly influence the FSR, are considered to result in a built form that is excessive in terms of visual bulk and which fails to respond to the public domain to the north and west of the site. In his view the floor space located within the reduced setback to Junction Lane is inconsistent with adjoining properties to the west and will result in a built form that has adverse impacts on the character of Junction Lane and impinges on sight lines to and from the plaza area. The lack of punctuation or articulation to the western façade further contributes to the visual bulk of the proposal. He concludes that the proposal fails to meet the objectives of the FSR control and that a more compliant building with increased setbacks to the northern and eastern boundaries would have benefits in terms of reducing the overall building mass and providing a more sensitive interface with Junction Lane, surrounding development and the publicly accessible space to the west.
The planners disagreed on whether the proposal waste management strategy was suitable. It was agreed that it did not accord to the details required by the council however Mr Darroch said, that subject to obtaining approval from RailCorp to wheel the bins over its land, the distance to place the bins on Cathedral Street was satisfactory as was the design of the waste storage rooms within each unit. Mr Mead says that the proposal does not comply with the council's Policy for Waste Minimisation in New Developments and that the practical matter could be resolved through provision of a setback along the western and/or south-western elevations.
Conclusion and findings
At the conclusion of the hearing, the issues between the parties were the adequacy of the waste management plan; the FSR; building height; deep soil planting; building design and its response to locality and whether the council should accept dedication of land and offset the cost against s94 contributions. The primary difference is whether there is a need to set they building off the Cathedral Street and western property boundary thereby reducing the bulk and scale of the building and providing more active frontages to Tom Uren Place.
There is no dispute between the parties that Tom Uren Place is an important social hub for the local community during the day. At night, it is an area where rough sleeping occurs. That challenging environment demands an appropriate response to built form, both in terms of ensuring the effective relationship with public and private domain and consideration of safety and security. What is apparent is that the area that appears to be public space is not. A large portion of the site currently forms part of that "public space" but is privately owned. I have no evidence of the lease that covers the land owned by RailCorp and leased to NSW Land and Housing. That agency raised no objection to the amended proposal provided no vehicle access to the site was provided from Charles Street. The site was sold by RailCorp to the applicant and therefore, the only conclusion that can be drawn is that no lease of any part of the site continues to apply.
Neither the council nor Land and Housing had sought to regularise/resume that portion of the site that is presently incorporated within the land described as Tom Uren Place. Further, in response to the applicant's proposal to dedicate the north-western portion of the site to the council, Ms Pearman advised that the council was not prepared to accept its dedication. In particular, it was not prepared to offset the cost of the land against any s94 contribution due as a result of any consent that may be issued for the site. That is because the land is not identified for acquisition under the s94 Plan.
In response to any enquiry made by the Court during the hearing, Ms Pearman advised that the council had not considered, as a result of the assessment process of this application, that it was necessary to regularise the ownership/leasing arrangements of the land known as Tom Uren Place to ensure that it would remain available as a public place.
It is apparent that RailCorp will continue to own the land immediately adjacent to the site's western boundary as that land is required for maintenance access to the railway line. That fact led to RailCorp's objection to the original proposal that provided for openings within the western wall when built to the boundary. The evidence is that no such objection would apply if the building were setback from the boundary as supported by the council's planning and urban design experts.
Having regard to the evidence and assessing the planning controls, I do not consider that it is appropriate to provide the stepped and recessed setbacks to Cathedral Street as proposed by Ms Castellanos. I accept Mr Dickson's and Mr Darroch's evidence that these setbacks would be unsafe, providing places for concealment. The design provides for an active street frontage to the whole of the site's frontage to Cathedral Street in accordance with the DCP requirements. The setback is also consistent with the streetscape of that street.
Similarly, I do not consider that there is a need to set the building off the western boundary and provide a 3m wide corridor. Such an area would also have the potential for concealment and be unsafe, particularly as the existing planter bed, which would be reduced in size but retained, shields the blank wall. The plantings that will remain within that bed are sufficient to provide a screen to the western façade of the building. The council's planning controls do not identify the western boundary of the site as an area that is required to be an active frontage and I am satisfied that those objectives contained in the controls to provide surveillance are addressed satisfactorily.
There is a need to provide a setback to the building from Junction Lane to ensure that appropriate view lines are maintained. I am satisfied that the setback provided is appropriate and that the curved façade in this location assists in providing the necessary view lines but also reducing the opportunities for concealment. I note that the adjoining properties to the east of the site are the subject of recent development consents/applications involving additions to the rear. Whilst details of that work were not provided, it is apparent during the view that alterations were being made to the rear of two of those buildings. Whilst there is no fence on the boundary of the adjacent property at this time, this situation may change at any time and accordingly, I do not find it necessary for the building to be further setback to accord to the median setback control.
The site has frontage to Junction Lane and the design provides for an active frontage to that area, in this case, an important aspect of the design and therefore, sufficient reason to vary the control contained within the DCP. For these reasons, it is important that no development occurs within the area designated for dedication. In the event that council does not accept the land, a condition of consent should be imposed that requires the land to be paved and not fenced. This will retain the important view lines and allow a view from Junction Lane/Charles Street to Cathedral Street.
I accept the evidence of Mr Dickson that, in the circumstances of the case and subject to my finding above regarding an appropriate setback to Junction Lane, it is important to get the buildings as close as possible to the public domain, that the windows within the curved section of the building are an appropriate response to the way it addresses the environment and, when combined with the views available from the first floor courtyard, the development provides for surveillance of all areas that cannot be readily observed from Cathedral Street. I do not accept that the surveillance of the whole of the public domain in this location from the site is the responsibility of one landholder.
Having regard to the provisions of Clause 6.21(3), I am satisfied that the architectural design, materials and detailing proposed is appropriate to the building type and its location, will improve the amenity of the public domain and, with the setbacks proposed retain sufficient view corridors. The introduction of residential uses in the vicinity of Tom Uren Place is a positive aspect of the development and would be unlikely to occur without variation to the planning controls, given the existing building floor space.
I do not accept the applicant's proposition that the land should be accepted as road-widening and the costs offset against the contributions payable under s94 of the Environmental Planning and Assessment Act 1979 (Act). The land is not identified for acquisition under the council's s94 Plan however, the development proposal brings with it a need to maintain that area in an open manner. Accordingly, in the event that an agreement cannot be reached between the parties on the ownership of the land, the land should stay in the ownership of the applicant and a consent condition applied that restricts the use of the land, prohibits its fencing and requires it to be paved and maintained so as to be consistent with the paving in Junction Lane/Tom Uren Place.
I also accept the evidence on behalf of the applicant that it is appropriate to vary the FSR control, as provided for under the provisions of clause 4.6 of the LEP. That is because, as outlined above, it is appropriate to allow development across the majority of the site. Having regard to the scale of the adjoining buildings, the need to maintain a two storey building height at the Cathedral Street frontage and limit the scale to one storey at Junction Street, the central, third storey, is not considered to be out of character with the scale of buildings in the immediate vicinity of the site. In particular, I have regard to the objectives of the FSR control and consider that the development is consistent with those objectives, particularly (d) in that the design has regard to the particular circumstances and siting and minimises adverse impacts on the amenity of the area.
Similar findings are made in regard to the deep soil and storey controls contained within the DCP.
I consider that, in the event that RailCorp (and Land and Housing, if any lease applies to the land) provide consent to use Tom Uren Place to move waste bins across the adjoining land to the collection point in Cathedral Street, that, subject to standard consent conditions in relation to waste storeroom size, the issue of waste management can be satisfactorily addressed. In the event that such consent is not forthcoming, occupants of the building would be required to utilise Junction Lane and Forbes Street to access the collection point. The path of travel is only slightly greater than that utilised by the occupants of the adjacent site to the east and would be less than that used by residents of Charles Street. This matter is not one that would justify refusal of consent.
For the reasons outlined above, I am satisfied that it is appropriate to vary those development standards contained in the DCP and that the objectives of the controls contained within are satisfied by the proposal. At the conclusion of the hearing, final consent conditions had not been prepared and accordingly, final orders cannot be issued.
The parties are directed to file agreed conditions by 4pm Friday 31 January that reflect the findings outlined above.
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Sue Morris
Commissioner of the Court
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Decision last updated: 14 January 2014
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