Eastview v Sydney City Council

[2004] NSWLEC 177

Land and Environment Court

of New South Wales

CITATION:	Eastview v Sydney City Council [2004] NSWLEC 177
PARTIES:	Eastview (Australia) Pty Ltd Applicant Sydney City Council Respondent
FILE NUMBER(S):	10754 of 2003
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- urban design heritage impact
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	22/03/04 and 23/03/04
DATE OF JUDGMENT:	04/27/2004
LEGAL REPRESENTATIVES:	Mr J Ayling, SC Mr A Pickles, barrister instructed by Mr R Burke of Gilbert Mane Mr D Officer, QC instructed by Mr J Smith of Pricewaterhouse Coopers Legal

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10754 of 2003

Roseth SC

27 April 2004

Eastview (Australia) Pty Ltd

Applicant

v

Sydney City Council

Respondent

Introduction

1 This is an appeal against the deemed refusal by Sydney City Council (the council) of a development application to demolish the existing building and erect a seventeen-storey building containing offices and apartments on lots 4-6 DP 6380, known as 61-65 Wentworth Avenue, Surry Hills.

The site

2 The site is on the west side of Wentworth Avenue, mid-way between its intersection with Elizabeth and Goulburn Streets. It is rectangular and its area is 557m2. The existing four-storey building covering the site is to be demolished.

3 To the south the site adjoins Wentworth House, a heritage listed pair of buildings that occupies the corner of Wentworth and Elizabeth Streets and functions as a hotel. To the north there are five buildings to the corner of Goulburn Street: Chatsworth House at No 59 (a three-storey building); Nos 55-57 (a two-storey building); Key College at No 49-53 (a nine-storey building); 47 Wentworth Avenue (a two-storey building); and 35-45 Wentworth Avenue (a fifteen-storey building) at the corner with Goulburn Street.

4 The buildings on the other side of Wentworth Street are mostly four storeys. Several of them are heritage-listed.

The proposal

5 The applicant proposes to construct a building with five basement levels for 44 cars, six commercial levels providing 2,800m2 of space and ten residential levels containing 37 apartments. The only characteristic of the proposed building at issue is its height of 55m.

Relevant legislation, planning instruments and policies

6 The Central Sydney Local Environmental Plan 1996 zones this site “City Centre”, a zone in which the uses here proposed are permissible. The other side of Wentworth Avenue is zoned “City Edge”. The proposal complies with the 60m-height limit and the maximum permissible Floor Space Ratio (FSR) for the site. The controls on the other side of Wentworth Avenue are significantly different.

7 The Central Sydney Heritage Local Environmental Plan 2000 lists Wentworth House as an item. It does not list the subject site, or any of the five sites between it and Goulburn Street. The objectives are aimed at preserving heritage. The experts disagreed on whether or not the proposal satisfied the objectives of this LEP. The LEP requires that the impact on heritage items be taken into account when granting consent.

8 The draft City of Sydney Local Environmental Plan 2002 changes the height limit from 60m to 55m, a provision with which the proposal complies. The Central Sydney Development Control Plan 1996 provides detailed controls for development in Sydney. According to the experts’ joint statement (Exhibit 8), the DCP was satisfied subject to amendments to Level 6. The applicant accepted the amendments.

9 State Environmental Planning Policy 65 (SEPP 65) contains ten design principles for residential flat buildings. According to the council’s experts, the principles at issue were Context, Scale, Built Form, Density and Aesthetics.

The issues

10 The council submitted a Statement of Issues containing 14 issues. Following the meeting of experts, the amendment of Level 6 and the submission of a schedule of finishes, only two issues remained, namely:

· Is the impact of the proposal’s height on Wentworth House acceptable?

· Is the impact of the proposal’s height on the streetscape of Wentworth Avenue acceptable?

11 The two issues are so intertwined that I propose to deal with them as one.

Objectors’ evidence

12 The Court heard the evidence of Ms L Kennedy, a director of Kenmax, the owner of Wentworth House. Her concern was the proposal’s impact on the development potential of Wentworth House. She had in mind adding two to three floors on top of the existing building. Mr A Freund, the owner of the north-adjoining building, 59 Wentworth Avenue, had similar concerns. He thought that the redevelopment of his site would result in a building of eight to nine storeys.

13 The applicant amended the plans with respect to the treatment of the balconies and roof terraces in a way that, according to the experts, would reduce impact on the development potential of the two adjoining sites. I note that there was minor disagreement between them about details. Where there was disagreement I have accepted the council’s position (see Conditions below).

Expert evidence

14 The council’s experts were Mr T Robb, a planner with the council, Ms G Morrish, a consultant urban designer, and Ms S Duyker, a heritage expert. The applicant’s experts were Mr R Dickson, an urban designer, and Mr S Davies, a heritage expert.

15 The evidence of the council’s experts may be summarised thus:

· The height of the proposal is too great for an appropriate backdrop to Wentworth House.

· The proposal would be the tallest building in the block between Elizabeth and Goulburn Streets. Its height would have an unacceptable impact on the streetscape of Wentworth Avenue.

· The appropriate heights would follow a line connecting Wentworth House with Key College at No 49-53 (see Ms Morrish’s illustration below). This would allow the proposal to rise to about ten storeys.

16 The applicant’s experts did not agree that there was any benefit in an oblique height line such as illustrated by Ms Morrish.

The basis of the council’s evidence

17 Underlying the council’s experts’ evidence must be the following principles:

· The significance of Wentworth House (when viewed from the south) is diminished by the backdrop of a tall building. In this case tall means seventeen storeys.

· Where buildings in a street block are of uneven height, their height should decrease in an orderly fashion from the tallest to the lowest so that a straight line can be drawn connecting their roofs.

18 I note that the experts did not articulate the reasons for their views in the same way as I have written above. Ms Morrish called a building of the height of the connecting line a transitional element and she said that a transitional element was the preferred solution, although she did not state who preferred it.

19 I do not accept that the above principles, even if they have some theoretical validity, are valid in this case. With regard to the first, the dispute is about whether Wentworth House should have a ten-storey or a seventeen-storey building as visual backdrop. Wentworth House is now seen against the backdrop of the blank wall (with faded advertising painted on it) of No 49-53, behind which loom numerous tall buildings of the City with the American Express building dominating. Between the subject site and the American Express building is a site that has development approval for another tall building of around thirty storeys. In my opinion, the visual experience of someone looking at Wentworth House from the south will not change significantly whether the building on this site is ten-storey or seventeen-storey. The backdrop is, and will remain, the mass of tall city buildings.

20 I am strengthened in the above conclusion by the fact that small heritage buildings in Sydney are usually experienced against a backdrop of tall buildings. An example that comes to mind (and was mentioned during the hearing) is the two and three-storey buildings at the corner of Pitt and King Streets, which are seen against the fifty-storey MLC building.

21 I turn to the matter of gradually increasing building height (or transitional form, as Ms Morrish calls it). I accept that people enjoy a sense of order in urban design. If building heights are not uniform (and they rarely are in Sydney), it is more satisfying if they follow a deliberate line than if they appear haphazard. However, this principle has value only if it is applied on a reasonable urban scale. The sloping height line that Ms Morrish suggested would apply only to this street block of Wentworth Avenue. There is no indication in the planning controls that it might apply to other sections of Wentworth Avenue or to other streets. There is no urban design benefit in imposing a sloping height line only on one street block of one street of the City.

22 I note that Ms Morrish suggested that the height of buildings on other sites in the City would be controlled by applying the principles of SEPP 65, a policy that relates only to residential development. Since the majority of development in the City is commercial, SEPP 65 does not always apply.

23 Another problem of the sloping height line is that it is unachievable. The Court heard evidence that the owner of Wentworth House intends to place two or three storeys on that building. The owner of the building to the north said that he would probably seek redevelopment to eight or nine storeys. If these developments went ahead and other sites remained undeveloped, several buildings in the block would not be tall enough to reach Ms Morrish’s sloping line. A higgledy-piggledy building form below the sloping line seems to me to be no better than a higgledy-piggledy form above it.

Conclusion

24 The council’s only criticism of the proposal was that it is too tall. The criticism is based on the impact on the adjoining Wentworth House and on Wentworth Avenue. In my opinion, the impact on Wentworth House of a 35m or a 55m tall building will be very similar, because there is an existing backdrop of much taller buildings against which Wentworth House is now seen. The council’s justification for preferring a lower building for streetscape reasons was that the heights of buildings in the street block should follow a straight line connecting the tallest with the lowest. I do not think that such a line has urban design benefits if it is applied to only one block in Wentworth Avenue.

25 For the above reasons I do not accept the evidence of the council’s experts. In my opinion the proposal’s height will not impact adversely either on Wentworth House or the streetscape of Wentworth Street. The appeal is therefore upheld.

Orders

1. The appeal is upheld.

2. Development application to demolish the existing building and erect a 16-storey building containing offices and apartments on lots 4-6 DP 6380, known as 61-65 Wentworth Avenue, Surry Hills is determined by the granting of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 7 and H. .

_________________
Dr John Roseth
Senior Commissioner - 6 -