Ceerose Pty Ltd v Council of the City of Sydney

[2016] NSWLEC 1475

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ceerose Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1475

Hearing dates:

29-30 August 2016

Date of orders:

13 October 2016

Decision date:

13 October 2016

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

(1)   The appeal is dismissed.
(2)   The Staged Development Application (D/2015/1902), which sets out the concept proposal for a building envelope and hotel use at 757-763 George Street, Sydney, is refused.
(3)   The exhibits, except Exhibit 1 and C, are returned.

Catchwords:

DEVELOPMENT APPLICATION: Staged development application for concept building envelope and hotel use. Non-compliance with height standard.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Sydney Local Environmental Plan 2012

Cases Cited:

Bates Smart Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1001
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472

Category:

Principal judgment

Parties:

Ceerose Pty Ltd (Applicant)

  The Council of the City of Sydney (Respondent)

Representation:

Counsel:
Ms S Duggan, SC (Applicant)

 

Mr P Clay, SC (Respondent)

 

Solicitors:
Mills Oakley (Applicant)

  The Council of the City of Sydney (Respondent)

File Number(s):

2016/151382

Judgment

1. Ceerose Pty Ltd (applicant) is appealing under s97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Council of the City of Sydney (council) of a Staged Development Application (D/2015/1902), which sets out the concept proposal (Concept Proposal) for a building envelope and hotel use at 757-763 George Street, Sydney (site).

2. The main issue that remains in dispute is the proposal’s non-compliance with the height standard in cl 4.3 of Sydney Local Environmental Plan 2012 (LEP) and the satisfaction of the requirements in cl 4.6 to vary the development standard.

Site and locality

3. The site is located on the north-western corner of George Street and Valentine Street. It comprises Lot 11 DP 70261 (757-759 George Street) and Lot 1 DP 1031645 (761-763 George Street) with a total area of 1030.7sqm. The northern part of the site (757-759 George Street) has a single frontage to George Street and is developed with a four storey mid 20th century mixed use commercial building. The rear of this lot extends to the north behind part of the adjoining property (743-755 George Street) and is used for parking, which is accessed via a driveway that is constructed over the boundary of both 757-759 and 743-755 George Street. 757-759 George Street benefits from an easement for access over this driveway.

4. The southern part of the site (761-763 George Street) has a frontage to both George Street and Valentine Street and is developed with a two storey mixed use building known as the “Sutton Forest Meat” Building, which occupies its whole lot.

5. The adjoining property to the north, is a 13 storey residential flat building with ground floor commercial known as Capitol Terrace (743-755 George Street). The building is setback 1.5m from its south eastern boundary, adjoining the driveway, and is built to the boundary where it adjoins the car park on 757-759 George Street. The majority of the façade that is built to the boundary is blank but in the rear there are apartments on the 12 levels (Unit 2), which have a window facing west from a living room and a window facing south (towards the site) from a secondary bedroom (which also has a window to the west). There are also apartments on 12 levels in the centre (Unit 1), which have a window facing south from a living area (towards the site) and a window facing west from a secondary bedroom.

6. To the south of the site, on the opposite side of Valentine Street are a seven storey commercial building (10-14 Quay Street), a three storey former Lutheran Church, which is currently vacant (17-19 Valentine Street), and a part three-part eight storey hotel (767-769 George Street). To the west, the site adjoins a ten storey educational and commercial building (187-189 Thomas Street). To the east, on the opposite side of George Street, are Christ Church St Laurence and two three storey commercial buildings (810-812A George Street).

7. The surrounding area contains a mixture of uses and buildings including commercial, retail, hotel and backpacker accommodation, as well as residential. The site is in close proximity to Central Station and Railway Square near the “southern gateway to the CBD”.

Statutory framework

8. The site is within the B8 Metropolitan zone under the LEP and the development is permissible with consent. The objectives of the zone are:

• To recognise and provide for the pre-eminent role of business, office, retail, entertainment and tourist premises in Australia’s participation in the global economy.

• To provide opportunities for an intensity of land uses commensurate with Sydney’s global status.

• To permit a diversity of compatible land uses characteristic of Sydney’s global status and that serve the workforce, visitors and wider community.

• To encourage the use of alternatives to private motor vehicles, such as public transport, walking or cycling.

• To promote uses with active street frontages on main streets and on streets in which buildings are used primarily (at street level) for the purposes of retail premises.

9. Clause 7.20 of the LEP applies to the development as it is for the purpose of a new building with a height over 55m. Clause 7.20(2) provides that consent must not be granted unless a development control plan has been prepared that provides for the matters in cl 7.20(4), which include:

(a) requirements as to the form and external appearance of proposed development so as to improve the quality and amenity of the public domain,

(b) requirements to minimise the detrimental impact of proposed development on view corridors,

(c) how 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 interface at ground level between the building and the public domain,

(xiii) the excellence and integration of landscape design,

(xiv) the incorporation of high quality public art into the fabric of buildings in the public domain or in other areas to which the public has access.

10. Section 83C of the EPA Act provides that if an environmental planning instrument requires the preparation of a development control plan before development is carried out, that obligation may be satisfied by the making and approval of a staged development application. The Concept Proposal is a staged development application for a building envelope and concept use. The detailed design of the proposal would be considered under any further application, which would include a consideration of design excellence requirements under cl 6.21 of the LEP.

11. Under cl 4.3 and the Height Map of the LEP, the maximum height of a building is 50m. Under cl 4.4 and the Floor Space Ratio (FSR) Map, the maximum FSR is 7.5:1 with an additional 1.5:1 under cl 6.4 for hotel accommodation. The Concept Proposal provides a FSR of 9:1 and a height of 73.05m. It exceeds the height standard and the applicant has submitted a written request to vary the height standard under cl 4.6 of the LEP, which provides:

4.6 Exceptions to development standards

(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 Secretary has been obtained.

(5) In deciding whether to grant concurrence, the Secretary 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 Secretary before granting concurrence.

12. The key dispute between the parties is whether the requirements of cl 4.6 to vary the height standard are satisfied, which is discussed later in this judgement.

13. 757-759 George Street is identified in Schedule 5 of the LEP as a heritage item (I843). The site is within the vicinity of a number of heritage items including Christ Church St Lawrence group, Central Railway Station Group, a group of commercial buildings at 767-791 George Street, the former Orchard House at 793-795 George Street and the former Lottery Office at 814 George Street.

14. Sydney Development Control Plan 2012 (DCP) is relevant. Section 2 of the DCP includes Locality Statements. The site is in the Central Sydney Locality and within the Haymarket/Chinatown Special Character Area. The character statement and supporting principles in s 2.1.3 relevantly include:

…….As an area somewhat removed from the City Centre, it retains fine grained subdivision patterns, narrow frontages, informal public spaces and generally low building heights. The consistent low street wall, and the absence of the tower form, creates a pleasant microclimate at street level, which is well sunlit and protected from winds.

……..

Principles

(a) Development must achieve and satisfy the outcomes expressed in the character statement and supporting principles.

(b) Retain and enhance the urban character and scale of the Haymarket locality by requiring new buildings to:

i. be built to the street alignment;

ii. have street frontage heights consistent with the prevailing form of heritage items in this Special Character Area; and

iii. have building setbacks above those street frontage heights.

(c) Maintain a high level of daylight access to the street by restricting building

height and bulk.

…….

(h) New development is to maintain and enhance vistas east along Valentine Street to Christ Church St. Lawrence at 814A George Street, Haymarket.

(i) Maintain and enhance the existing vista to the Anglican Christ Church of St Laurence along Valentine Street.

……

15. The parties referred to the Central Sydney Planning Strategy and Planning Proposal to Amend the LEP and DCP. While these documents may be relevant considerations under s79C(1)(e), they have not been publically exhibited and consequently should be given little weight (see Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472). Even if these documents were to be given weight, the 50m height limit is retained and it is proposed that the height of a heritage item in the Special Character Area would be that of the existing building.

Background and proposal

16. The Concept Proposal was lodged on 23 December 2015 seeking staged development consent for a building envelope with a height of 73.05m and a FSR of 9:1 to be used as a hotel. No works would be approved under the Concept Application, which proposes:

1. demolition of the existing buildings except the façade of “Sutton Forest Meat” Building;

2. a building envelope for a new tower cantilevered above the retained façade to a maximum height of 73.05m (22 storeys);

3. three basement levels with 39 car spaces accessed off Valentine Street;

4. use of the site as a 3.5 star hotel with 207 rooms;

5. “adaptive re-use” of “Sutton Forest Meat” Building as reception, front of house, and bar and dining facilities;

6. provision of hotel guest facilities on the podium level, including gym and swimming pool; and

7. provision of back of house facilities off Valentine Street.

17. A Class 1 appeal against the deemed refusal of the Concept proposal was filed on 8 February 2016. A conciliation conference under s 34 of the Land and Environment Court Act1979 (LEC Act) commenced on site on 25 May 2016 2015. The parties did not reach agreement and the conciliation conference was terminated and the parties agreed to my disposing of the proceedings under s34(4)(b)(i). The parties also agreed that the site view and discussions in the conciliation conference could be evidence in the proceedings but these were replicated at the commencement of the hearing.

18. The application remains undetermined by council.

The evidence

19. The hearing commenced with a view of the site and surrounding area. The Court heard from a representative of Christ Church of St Lawrence who reiterated the concerns that had previously been expressed at the conciliation conference, which include that the proposal will adversely impact on the significance of the church. In particular, the height of the tower exceeds the height control and would be out of scale with its surroundings. The view of the church and its spire with the backdrop of Central Station clock tower would be compromised if framed by the proposed building. Similarly, the view of the church spire from Central Railway, which is currently viewed against the sky, would be compromised if viewed against the height of the proposed building. The development would also result in an increase in parking and access problems for users of the Church, particularly if tourist buses were to park outside the church, which already occurs.

20. Statements of Evidence and Joint reports were prepared on the urban design, heritage and planning contentions by Mr R Dickson, Mr R Staas and Mr A Darroch, for the applicant, and Mr A Smith, Mr H Wang and Mr C Ashworth, for the Council. Other than Mr Darroch and Mr Ashworth, the experts were not required for cross examination.

Height and clause 4.6

21. The maximum height of the development is 73.05m, which does not comply with the maximum height of 50m under cl 4.3 of the LEP.

22. Mr Darroch prepared a written request required under cl 4.6(3) of the LEP seeking to justify the contravention of the height standard (the Request). The discussion in the Request referred to the Sydney Hotels Supply and Demand Study 2014 (Hotels Study) carried out on behalf of the council, which identified a significant demand for hotels in this area. The Request outlines that the breach in the height control results from the relocation of building mass away from the windows and balconies of Capitol Terrace to

…retain outlook, skyline views and solar access and daylight….which would otherwise be obscured by a building that observed the 50m height control whilst achieving the intensity of development that is desirable in this locality.

23. The Request compared the Concept Proposal to two “complying schemes”, which would both achieve the “desired intensity of development” ie one that did not exceed the 50m height standard (Scheme 1) and one that involved the demolition of the heritage building (Scheme 2).

24. The Request provides that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) as the Concept Proposal is consistent with the objectives of the B8 Zone and the height standard. Whereas, a “complying scheme” would “thwart” the achievement of these objectives. Similarly, the objectives would be “thwarted” if the development was not able to achieve the desired intensity (FSR) as a result of strict compliance with the height standard. Furthermore, the Concept Proposal would result in a better planning outcome than either “complying scheme” as it provides better residential amenity to the dwellings in Capitol Terrace and the hotel rooms in the proposal, will retain the heritage façade and will not result in any significant environmental impacts.

25. Similarly, the Request states that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)) principally because a better planning outcome would be achieved.

26. The Request states that the objectives of the height standard are achieved as the proposed building:

is appropriate to the condition of the site and its context and that it minimises any overshadowing, loss of privacy and visual impacts for the neighbouring properties….The proposal provides an appropriate transition and follows the form and relationship set by the proximate buildings….is consistent with the desired character of the locality and provide an intensity of development that is commensurate with the existing and planned form in the locality

27. The development complies with the objectives of the zone:

by providing a compatible land use characteristic of Sydney’s global status and that serves the workforce, visitors and wider community and providing active street frontages.

28. Mr Darroch provided further evidence in relation to the objectives of the standard. He noted that a “condition of the site and its context” includes a number of taller buildings and the adjoining building to the north, Capitol Terrace. The additional height is a consequence of the increased setback to Capitol Terrace to maintain its amenity and the height is not dissimilar to other buildings in the area (Objective a). The height control envisages a building of 50m and there is little difference in the “height transition” between the proposal and a complying building with the existing heritage items in a context that is interspersed with taller buildings (Objective b). During the hearing a view analysis was provided by council, which assessed the potential impact on views from 61-79 Quay Street and 107-121 Quay Street. Mr Darroch raised concerns about the view analysis but considered that the proposal does not give rise to any unacceptable view sharing as even if views to the north east are affected by the proposal, wider views to the city are maintained (Objective c). The proposal will maintain the height transition from Central Sydney to the lower scaled adjoining areas (Objective d).

29. Mr Ashworth considered that the Concept Proposal was not consistent with the objectives of the height standard and he did not agree that compliance with the height control would thwart the achievement of these objectives. The height control under the LEP within a 200m radius of the site is 50m or less and the majority of existing buildings are below 50m and the desired future character will maintain this character. He acknowledged that there are 7 building which exceed 50m in this area but these were approved under different controls and, some, by other authorities. He considered that these buildings do not set an appropriate benchmark for the development and they result in similar impacts to those of the proposal. The increased setback of the proposal to the windows and balconies of Capitol Terrace and any amenity benefits do not justify the increased height when balanced against the adverse impacts to the wider area. The proposal can be built to the boundary with Capitol Terrace and it would be unreasonable to constrain development on the site to maintain light and air to windows in that development that are built close to the common boundary (Objectives a). The exceedance in the height control will result in an uncharacteristic height, an overbearing built form and will not provide an appropriate transition to the nine heritage items in the vicinity of the site and the scale of buildings in the Special Character Area (Objective b). A view analysis was not undertaken by the applicant and the one prepared by council demonstrates that the increased height of the proposal would result in a greater impact on views than a complying proposal (Objective c). The site is located in a height transition area between the high rise development in the CBD and Darling Harbour to the north and the lower scale development to the west, south and east. The height of the proposal will be dominant in the locality and not provide an appropriate transition (Objective d). Compliance with the standard is therefore not unreasonable or unnecessary in the circumstances of the case.

28. Mr Ashworth noted that the whole of the City Centre is within the B8 zone and includes a number of different height controls. While the proposal may be consistent with the zone objectives, a development which complied with the height control would also be. Furthermore, he considered that the additional impacts that would result from the exeedance in the height standard demonstrate that the proposal is not a better planning outcome and that there are not sufficient environmental planning grounds to justify contravening the development standard. For these reasons, Mr Ashworth was not satisfied that the Request met the requirements of cl 4.6 of the LEP to vary the height standard.

29. Mr Dickson and Mr Smith agreed on photomontages that they based their assessment of the visual impact of the proposal, particularly its additional height in comparison to a building that would comply with the height control. In Mr Dickson‘s opinion, there are a mix of building heights within the Special Character Area and the proposed envelope is of a similar scale to buildings on the eastern side of George Street and to the south of Railway Square along Broadway. He considers that the proposal “would assist to frame George Street when viewed from Henry Deane Plaza to the south”. When viewed from Valentine Street, Christ Church St Lawrence would be symmetrically framed by the proposed development and the additional height would not be within the cone of vision of normal eye height. When viewed from Foveaux Street, the proposed envelope is unlikely to have a greater impact than a complying envelope and it will not impact views of any heritage item but only sky. Furthermore, the additional height would not result in material impacts, such as overshadowing or view loss when compared to a complying building and would provide amenity benefits to Capitol Terrace. Mr Dickson also considered that the non-complying set-backs would not exacerbate the height and were necessary to provide a usable floor plate for the development.

30. Mr Smith considered that the proposed building height is excessive in the context of buildings within the Special Character Area. He states:

When viewed from surrounding areas, and particularly from the south, it will not blend into the distant towers in the central CBD to the north but will appear proximate and larger than its neighbours in the view catchment. The non-complying setbacks will exacerbate the negative impacts of excessive height as they fail to provide appropriate height transitions into the surrounding context of low rise heritage buildings and medium rise commercial and apartment buildings.

33. In Mr Smith’s opinion, from Valentine Street, the envelope impinges on the amount of sky visible around the steeple of Christ Church St Lawrence and diminishes its landmark quality. The fixed view in the analysis does not represent the ability of a person to look up and down to and perceive the full height of the proposed envelope. From Foveaux Street there are many locations that the proposed envelope will be clearly seen with Central Station Clock Tower. Mr Smith considered that a complying height would have acceptable amenity impacts on Capitol Terrace and solar access to the public domain, including the footway dining area at 814 George Street.

34. The key disagreement between Mr Staas and Mr Wang was whether the proposed building would have an acceptable effect on the heritage significance of 761-763 George Street.

35. In Mr Wang’s opinion, the height of the proposed tower is not compatible or proportional with the existing two storey heritage building and when viewed together the heritage building will be overwhelmed by the new building, He states:

the significance of the heritage listed building lies in not just its fabric but its setting, external form and internal space. The air space above the heritage building is important in expressing its external form and setting. If the setbacks required under the DCP is made, the air space above the heritage can be largely maintained and its 3 dimension form can be properly expressed on the streets. ….The new building above the air space of the heritage building is an intrusion to the skyline and setting of the heritage building.

36. Mr Staas did not consider that it was unusual or unacceptable for the tower component of a development in a city context to exceed the height and scale of the retained façade or that it would be overwhelmed by the tower. In close views the tower and the existing building would not be seen together and in distant views the overall building would be seen in the context of other development. He states:

The significance of this building relies almost entirely on its remnant external façade fabric….The original setting is already partly compromised by nearby taller development that sits behind the item in many views ….the form created by the proposed setbacks combined with the height of the recess created above the parapet level is adequate to allow an appreciation of the retained façade and its relationship to other heritage elements in the streetscape.

37. Mr Wang and Mr Staas also disagree on the impact that the proposed tower would have on the significance of Christ Church St Lawrence and Central Station Clock Tower. Mr Wang considers that the proposal would have a greater impact than a development which complied with the height and setback controls. It would dominate Valentine Street and reduce the sky around the Church spire and the symmetrical view of the spire and the Clock Tower. It would intrude into the views towards the Church group from Pitt Street and particularly from the western concourse of Central Station, where it will appear in the background of the Church spire. Mr Staas considers that the setback of the tower is sufficient to ensure that the views of the Church spire along Valentine Street will remain intact and that the spire will still be viewed against a sky backdrop. The views from Pitt Street and the western concourse of Central Station are dynamic and the backdrop of the Church spire will remain largely unchanged.

38. The experts also held different opinions about the impact of the proposal on the significance of other heritage items in the vicinity of the site and the Special Character Area. Mr Wang notes that the area is characterised by an absence of tower forms and the proposal would be highly visible and not compatible with the lower scale, fine grained buildings. Whereas, Mr Staas considers there are a number of prominent towers in the Area, which is one of mixed character and the proposal will not detract from this character.

Findings

39. In Bates Smart Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1001, Brown C outlines the following assessment framework for a variation under cl 4.6:

39 Clause 4.6 of LEP 2012 imposes four preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), the second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the height standard (cl 4.6(4)(a)(ii)), the third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)) and the fourth precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).

…..

41 A negative finding for any precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment.

40. The parties disagree on whether the proposed height will be consistent with the objectives of the height standard and the zone (cl 4.6(4)(a)(ii)) and whether the Request adequately addresses the matters required to be demonstrated in cl 4.6(3)(a) and (b).

41. The relevant objectives of the height standard 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,

42. In Bates Smart at [47] Brown C considered the intent of objective (a) and states:

47. The intent of objective (a) is not particularly clear. The words "condition of the site" or the word "site" are not identified in the Dictionary to LEP 2012 and the written request does not provide any guidance as the height objectives are addressed collectively. Consequently, I have given the words "condition of the site", a broad meaning that includes the physical characteristics of the land that would include slope, any changes to the natural topography, natural features and the like as well as the improvements on the land, including any special features such as the heritage significance of the building, in this case. I have taken "context" to be principally the visual catchment from the site.

43. There are no physical characteristics of the site, such as slope, that would preclude compliance with the height control. The proximity of Capitol Terrace and the location of windows on or near the boundary facing the site are not physical improvements that would preclude compliance with the height control. Most of the proposal would be built to its northern boundary and consequently provides no amenity benefits to the adjoining windows of Capitol Terrace. Rather, the additional height of that part of the proposal is likely to reduce the amenity of these units.

44. The majority of the southern façade at the rear of Capitol Terrace is built to the boundary and is blank. Where there are windows, they are set back a minimum of 3m from the common boundary or face west. The development consent for Capitol Terrace was not tendered into evidence but it would appear that it anticipates that future development on the site could be built to the common boundary, which is consistent with the requirements of the DCP. While the “void” proposed in the north-west part of the site would provide amenity benefits to these windows, it is clearly beyond what is required. The main amenity benefit of the void would be to the proposed hotel rooms by providing an outlook to a “courtyard” space, which may receive northern sun.

45. The taller buildings are part of the wider context of the site but they do not establish the predominant character of the existing area nor are they what is sought as the desired future character of the area that is established by the planning controls, including the height standard. The planning controls recognise the existing variety and provide different height and FSR controls to different blocks within the City Centre. Under the current planning controls, the site is in a Special Character Area and the existing building is identified as a heritage item and is in the vicinity of a number of other items.

46. Other than the proximity of Capitol Terrace, there are no particular conditions of the site or its context that distinguish it from the other land in the Special Character Area. The location of Capitol Terrace does not warrant a breach of the height standard. The proposal therefore is not consistent with Objective (a) of cl 4.3 of the LEP.

47. The development does not provide an acceptable transition to the existing heritage building on the site. The reduced setback and additional height will not maintain the three dimensional scale and form of the existing building so that it reads as a building in its own right. Rather, the retained façade will read as a base to a much larger building.

48. The additional height will also impact on the setting of the Christ Church of St Lawrence. In particular, the extent of sky around the spire when viewed from parts of Valentine Street will be reduced by the non-compliant setback and is exacerbated by the non-compliant height. Similarly, the view of the spire from a significant part of the western concourse of Central Station, including the entry to the station, will be against the backdrop of a larger tower than one which complied with the height control. When viewed from the south along George Street from Railway Square, the proposal will have a significantly greater prominence than a development that complies with the height standard and does not provide an appropriate transition to the other heritage items in this area. The proposal is therefore not consistent with Objective (b) of cl 4.6 of the LEP.

49. There is likely to be an impact on the outlook from 61-79 Quay Street and 107-121 Quay Street, which results from the additional height of the building above the height standard. The extent of impact would need to be accurately addressed by the proposal to demonstrate that it promotes view sharing sought by Objective (c) of cl 4.3 of the LEP.

50. As discussed above, Central Sydney is within the B8 zone and includes a variety of different height controls, which establish a transition between the taller buildings to the north and Darling Harbour and the lower scale development to the west, south and east. The height of the proposal will be dominant in the locality and not provide an appropriate transition between these areas. The proposal is therefore not consistent with Objective (d) of cl 4.6 of the LEP.

51. The principal justification in the Request for the additional height is that it will provide additional amenity to the units in Capitol Terrace when compared to a “complying development”. For the above reasons, I do not accept that any benefits to these units outweigh the dis-benefits to the existing heritage building on the site, heritage items in the vicinity and the Special Character Area. The other reasons are not circumstances particular to this site or this development that demonstrate that compliance with the standard is unreasonable or unnecessary or that there are sufficient environmental planning grounds to justify contravening the development standard. I am therefore not satisfied, as required under cl 4.6(4)(a), that the Request has adequately addressed the matters required to be demonstrated under cl 4.6(3).

52. Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the above reasons, I am not satisfied under cl 4.6(4) and consequently there is no power to grant consent to the development application, which does not comply with the height control in cl 4.3 of the LEP and the application must fail.

53. Accordingly, it is not necessary for me to discuss the merit matters in dispute between the parties. Although, they generally replicate the matters discussed above.

ORDERS

1. The appeal is dismissed.

2. The Staged Development Application (D/2015/1902), which sets out the concept proposal for a building envelope and hotel use at 757-763 George Street, Sydney, is refused.

3. The exhibits, except Exhibit 1 and C, are returned.

Annelise Tuor

Commissioner of the Court

Decision last updated: 13 October 2016