Coronation Property Company Pty Ltd v Council of the City of Sydney

[2015] NSWLEC 1363

Land and Environment Court

New South Wales

Medium Neutral Citation:

Coronation Property Company Pty Ltd v Council of the City of Sydney [2015] NSWLEC 1363

Hearing dates:

31 August and 1 September 2015

Date of orders:

02 September 2015

Decision date:

02 September 2015

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

1. The appeal is upheld.
2. The development application (D/2014/1323) for the demolition of existing structures and the construction of a mixed use development at 9-25 Commonwealth Street, Sydney, is approved subject to the conditions in Annexure A.
3. The exhibits, except Exhibits 7, A and B are returned.

Catchwords:

DEVELOPMENT APPLICATION: Mixed use development including retail, hotel and residential. Contentions resolved by amended plans and conditions.

Legislation Cited:

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

Category:

Principal judgment

Parties:

Coronation Property Company Pty Ltd (Applicant)

Council of the City of Sydney (Respondent)

Representation:

Counsel:
Mr A Galasso SC (Applicant)

Mr P Clay SC (Respondent)

Solicitors:
Landerer & Company (Applicant)

Council of the City of Sydney (Respondent)

File Number(s):

10884 of 2014

Judgment

1. Coronation Property Company Pty Ltd (applicant) appeals pursuant to s 97 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 development application (D/2014/1323) for the demolition of existing structures and the construction of a mixed use development at 9-25 Commonwealth Street, Sydney (site).

2. The contentions raised by council have been resolved through the provision of additional information, amended plans, conditions and the agreement of the experts.

Site and locality

3. The site is located on the western side of Commonwealth Street and also has frontages to Clarke Street and Alberta Street. It is regular in shape with an area of 791.4sqm and is developed with a four to five storey commercial building.

4. To the north of the site, on the opposite side of Clarke Street, is a 31 storey commercial building formerly known as the “AMEX building” (169-183 Liverpool Street). It adjoins a 30 storey residential tower known as “The Connaught” (185-211 Liverpool Street). To the east, on the opposite side of Commonwealth Street, is a five storey commercial building (13-15 Wentworth Avenue) and a 15 storey residential building known as “Wentworth Towers” (17-25 Wentworth Avenue).

5. Adjoining the site to the south, is a 19 storey residential building known as “The Common”, which adjoins a 15-20 storey serviced apartment building operating as a Travelodge (27-33 Wentworth Avenue). On the opposite side of Alberta Street is a recent 22 storey residential building, known as “Aspire” (11 Alberta Street), and a landscaped area which is above a public carpark. Harmony Park is to the south east of the site.

6. The site is within Central Sydney in an area characterised by a mix of commercial and residential buildings ranging in scale and character. .

Background and proposal

7. The history of the application is in the Further Amended Statement of Facts and Contentions (Exhibit 7). In summary, a Design Excellence Competition was undertaken on 9 December 2013 which selected a scheme by FJMT Architects. The development application was lodged on 29 August 2014 (Original Application). It proposed a 35 storey mixed use building with 3 ground level retail tenancies, a 37 room hotel (levels 1-3), 126 residential apartments (levels 4-35) and six basement levels with parking for 69 cars.

8. The applicant lodged an appeal against the deemed refusal of the application on 21 October 2014. A conciliation conference under s34 of the Land and Environment Court Act 1979 (LEC Act) was held but no agreement was reached and the conference was terminated. The applicant subsequently sought and was granted leave to rely on amended plans on 17 April 2015, which were considered by the experts who recommended changes (Exhibit 2). Leave was granted to further amended plans on 22 July 2015. These amended plans were considered by the experts who recommended further minor changes (Exhibit 3), which were incorporated into further amended plans (Exhibit A), for which leave was granted during the hearing. A final Joint report was prepared by the experts in response to the Exhibit A plans (Exhibit 4).

9. The amended application in Exhibit A seeks consent for the following:

1. demolition of existing structures

2. remediation of the site

3. excavation of 4 basement car parking levels accessed via a car lift

4. vehicular access off Alberta Street

5. construction of a 33 level mixed use development which incorporates;

1. retail floor space on the lower ground and ground levels

2. a 132 room hotel on levels 1-13

3. 52 residential apartments on levels 14-31

Planning controls

10. The site is in the B8 Metropolitan Centre zone under the Sydney Local Environmental Plan 2012 (LEP), and the proposal is permissible with consent.

11. The maximum height shown on the Height of Buildings Map (cl 4.3(2)) for the site is 110m. The maximum floor space ratio (FSR) on the FSR Map (cl 4.4(2)) is 13.94:1. The proposal, as amended, complies with these standards.

12. The development’s compliance with cl 6.16 Erection of tall buildings in Central Sydney, cl 6.21 Design Excellence and cl 7.20 Development requiring or authorising preparation of a development control plan were raised as contentions in the proceedings but have been resolved and are discussed further below.

13. The Sydney Development Control Plan 2012 (DCP) is relevant and includes provisions for Sunlight to publicly accessible spaces (s 3.2.1.1), Design Excellence and Competitive Design Processes (s 3.3), Transport and Parking (s 3.11), Waste (s 3.14), Amenity (s 4.2.3) and Building setbacks (s 5.1.2).

14. State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) applies, and cl 30 requires consideration of design quality when evaluated in accordance with the design quality principles in cll 7-18, and the Residential Flat Design Code (RFDC).

Evidence

15. The Court visited the site and surrounding area. No objectors presented oral evidence to the Court but written submissions in response to the advertising and notification of the original application and the two amendments were tendered into evidence. The submissions include concerns which generally reflect those raised by council in its contentions. The additional matters raised in the submissions were not matters council considered would be reasons to refuse the application.

16. Joint reports were tendered on planning and urban design by Mr A Darroch and Mr R Dickson, for the applicant, and Ms S Robinson and Mr P Smith, for the Council. Mr T Rogers, for the applicant and Mr R Varga, for the council, provided joint reports on traffic and parking. The experts were not required for cross examination.

Contentions

Site specific DCP (Contention 1)

17. The experts agree that the site specific DCP required under cl 7.20 of the LEP is not necessary as the amendments to the proposal have tested various envelopes and options for development of the site. Although Ms Robinson noted that the site specific DCP should have been prepared earlier to determine the best planning outcome for the site and that the process of amendments through an appeal was not desirable for major projects in the city.

Height (Contentions 2 and 7)

18. The proposal in the Exhibit A plans now complies with the 110m maximum height limit under cl 4.3 of the LEP and thereby removes the requirement for a request to vary the standard under cl 4.6. The further amendments to the roof top “brise soleil” have addressed the experts concerns about maximising solar access to Harmony Park.

Setbacks and separation between buildings (Contention 4)

19. The experts accept that the setback of the tower element of the development and the separation between buildings would achieve an acceptable streetscape outcome an appropriate level of privacy could be achieved with screening to the south. They agree that the amendments and details of the screening in the Exhibit A plans provide adequate information on the screening required to achieve acceptable privacy.

Residential amenity (Contention 5)

20. The main contention in relation to residential amenity was solar access to the proposed apartments. 56% of the apartments would achieve two hours sun in midwinter, which is less than the 70% required by the DCP and the RFDC. Solar access to the site is constrained by overshadowing from the former Amex Building and The Connaught and the experts agree that solar access compliance is acceptable provided that not less than 55% of the apartments receive two hours solar access to living rooms between 9am and 3 pm on the 21 June, which is achieved.

Design Excellence (Contention 6)

21. Council’s contention was that the proposal did not satisfy the requirements of cl 6.21 of the LEP due to the non-compliances raised in other contentions, such as building height, tower setbacks, residential amenity and overshadowing of Harmony park. The experts have agreed that these matters have been satisfactorily addressed and did not disagree that the proposal would exhibit design excellence. Mr Darroch, in his Statement of Evidence, addressed the matters required to be considered under cl 6.21 (4) and the jury report on the competitive design process concluded that the FJMT scheme and overall concept achieves design excellence.

Waste collection and loading dock design (Contention 8)

22. The Original Application accommodated a loading dock which could accommodate a 9.25m long council garbage truck, however, this raised traffic and streetscape concerns. The amended application provides a smaller loading dock which cannot accommodate a council truck and therefore does not comply with s 3.11.13 of the DCP. The experts agree that the proposed dock can accommodate a 6.4m long SRV with a 3.6m height clearance and that it is appropriate that the site be serviced by trucks of this size and that private contractors be used for waste collection.

Service and delivery vehicles (Contention 9)

23. The experts agree that the proposed loading dock complies with the requirements of s 3.11.6 but does not comply with the numerical requirements of s 7.8.1 of the DCP. They agree that the single loading bay will be able to accommodate the anticipated number of deliveries subject to the implementation of a Loading Dock Plan of Management, which should be imposed as a condition of consent.

Insufficient information (Contention 10)

24. The information identified in Contention 10, including an acoustic report, updated Plan of Management for the hotel, updated remediation plan, and updated wind assessment have been provided and are considered acceptable by the council subject to the imposition of conditions.

Public interest (Contention 11)

25. The council did not press that there were any issues of public interest that had not been dealt with through the resolution of the other contentions. The other issues raised by objectors are not matters that would warrant refusal of the application.

Findings

26. The development application has been through a series of design amendments which respond to the issues raised in the contentions, by the objectors and the experts.

27. The Original Application and subsequent amendments exceeded the height control of 110m, which would have resulted in an increase in overshadowing of Harmony Park and required a request under cl 4.6 of the LEP to vary the standard. This has been addressed by a reduction in the height to comply with the standard and design changes to the brise soleil to reduce overshadowing. The number and location of residential units resulted in unacceptable amenity impacts, particularly for those units on lower levels. This has been addressed by significantly reducing the number of residential units and locating them at the upper levels and increasing the number of hotel rooms located at the lower levels. This has also improved solar access to the residential units and reduced the potential for privacy impacts, which have been further reduced through screening.

28. The size of the site, the overshadowing and proximity of other buildings place constraints on the development of the site and its ability to comply with the numerical requirements of some controls such as solar access to units and setbacks in the DCP and RFDC. Despite these non-compliances, the amended application in Exhibit A is considered by the experts to be an appropriate response to the site and its context and that the contention raised by council have been satisfactorily addressed.

29. As the height of the building exceeds 55m, the LEP imposes a number of pre-conditions that must be satisfied before consent may be granted, which I will briefly discuss.

30. Clause 6.16(3) of the LEP provides:

(3) Development consent must not be granted to development to which this clause applies if the building is on land having a site area of less than 800 square metres unless the consent authority is satisfied that:

(a) the building will have a freestanding tower each face of which will be able to be seen from a public place, and

(b) the development will provide adequate amenity and privacy for occupants of the building and will not significantly adversely affect the amenity and privacy of occupants of neighbouring buildings, and

(c) the ground floor of all sides of the building facing the street will be used for the purposes of business premises or retail premises.

31. I am satisfied that each of these matters cl 6.16(3) of the LEP has been adequately addressed. In particular, the proposal is a tower above a podium which will be able to be appreciated from the public domain (a). The amenity of occupants and adjoining developments has been addressed by the experts and is agreed to be acceptable (b). The ground level on each street frontage will be used as business or retail and provide an active street frontage. The parking and loading access has been minimised to increase these active uses.

32. The stated objective of cl 6.21 Design Excellence is to deliver the highest standard of architectural, urban and landscape design. Clause 6.21(4) provides matters that must be had regard to in considering whether the development exhibits design excellence. These have been adequately addressed by Mr Darroch and through the amendments to the proposal. I am satisfied that the proposal exhibits design excellence. Furthermore, a competitive design process has been held as required under cl 6.21 (5). The proposed development does not seek a “bonus” of up to 10% additional height or FSR, as permitted under cl 6.21(7) of the LEP for a building demonstrating design excellence.

33. Under cl 7.20 the consent authority must not grant consent unless a development control plan (DCP) is prepared which addresses certain matters. However, cl 7.20 provides:

(3) A development control plan is not required to be prepared if the consent authority is satisfied that such a plan would be unreasonable or unnecessary in the circumstances or that the development:

…..

34. I am satisfied that a site specific development control plan is not required to be prepared as it would be unnecessary in the circumstances as the amendments to the proposal have tested various envelopes and options for development for the site. Although, I note Ms Robinson observation that it would have been preferable for a site specific DCP to have been prepared earlier in the process to determine the best planning outcome for the site and that the process of amendments through an appeal was not desirable for major projects in the city.

35. For the above reasons, I am satisfied that the contentions raised by council have been adequately addressed and are resolved. The appeal may therefore be upheld and development consent granted.

Orders

1. The appeal is upheld.

2. The development application (D/2014/1323) for the demolition of existing structures and the construction of a mixed use development at 9-25 Commonwealth Street, Sydney, is approved subject to the conditions in Annexure A.

3. The exhibits, except Exhibits 7, A and B are returned.

Annelise Tuor

Commissioner of the Court

10884 of 2014 Tuor 02.09.15 (O) (9.34 KB, pdf)

10884 of 2015 Tuor (C) (397 KB, pdf)

Decision last updated: 03 September 2015