Ezzy Architects Pty Limited v Hornsby Shire Council

[2015] NSWLEC 1525

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Ezzy Architects Pty Limited v Hornsby Shire Council [2015] NSWLEC 1525

Hearing dates:

10-11 December 2015

Date of orders:

17 December 2015

Decision date:

17 December 2015

Jurisdiction:

Class 1

Before:

Morris C

Decision:

Appeal dismissed

Catchwords:

DEVELOPMENT APPLICATION: staged mixed use development – concept approval

Legislation Cited:

Environmental Planning and Assessment Act 1979; Hornsby Local Environmental Plan 2013; State Environmental Planning Policy No 55 – Remediation of Land; State Environmental Planning Policy (Infrastructure) 2007; State Environmental Planning Policy (Building Sustainability Index - BASIX) 2004; Sydney Regional Environmental Plan No 20 – Hawkesbury Nepean River (No 2 – 1997); State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development

Texts Cited:

Hornsby Development Control Plan 2013; Residential Flat Design Code; Hornsby West Side Traffic Study 2013

Category:

Principal judgment

Parties:

Ezzy Architects Pty Limited (Applicant)

  Hornsby Shire Council (Respondent)

Representation:

Counsel:
Mr I Hemmings SC (Applicant)

 

Solicitors:
Ms M Peatman
Marsdens Law Group (Applicant)

  Mr A Seton
Hunt & Hunt (Respondent)

File Number(s):

10733 of 2015

Judgment

1. Ezzy Architects Pty Limited (Ezzy) lodged Development Application 371/2015 with Hornsby Shire Council on 7 April 2015 seeking consent for a staged development comprising demolition of existing structures and concept proposal for a 25 storey mixed use development comprising 220 residential units, entertainment facility, retail and commercial floor space and 8 levels of basement car parking.

2. Ezzy filed an appeal against the council’s deemed refusal of the application on 27 August 2015.

3. Subsequent to the appeal, the Sydney West Joint Regional Planning Panel (SWJRPP) refused consent to the application on 2 September 2015.

4. Since the application was determined, the applicant has been granted leave on two occasions to rely on amended plans.

5. During the hearing the applicant sought and was granted leave to rely on further amended plans subject to payment of the council’s costs thrown away pursuant to the provisions of s97B of the Environmental Planning and Assessment Act 1979 (EP&AAct)

6. The plans now before the Court, Exhibit E, propose staged development consent for a concept approval of a 25 storey mixed use development comprising retail, commercial and residential floor space and 8 levels of basement car parking. The purpose of the concept approval is to define the building envelope for future development of the site.

The site and its context

7. The site is described as Lots 18, 19, 20, 21 & 22 in DP 13812, Lot 1 DP 114653, Lot 1 DP 1053591, Lot 1 DP 171959, Lot 1 DP 171958, Lot 1 DP 172708, Lot A DP 325525 and Lot 23 DP 13812 and known as Nos 240-260 Peats Ferry Road and 23-29 Station Street, Hornsby. Peats Ferry Road is the renamed Pacific Highway.

8. The combined lots form a triangular shaped site with an area of 1891.7sqm that currently contains four existing two to three storey commercial buildings described by the council as follows:

• The ‘Corner Building’ c. 1915 – c 1940, a two storey commercial building constructed on three lots and with corner frontage to Peats Ferry Road and to Station Street. The current uses include real estate offices, solicitors and takeaway food outlet;

• The ‘Middle Building’ c 1960 – c 1970, a tow and three storey commercial building on two lots and with frontage to Peats Ferry Road and to Station Street. The current uses include commercial tenancies;

• The ‘Northern Building’ c pre 1950 -, a two storey commercial building on six lots with frontage to Peats Ferry Road and to Station Street. The current use is furniture retail;

• No 23-29 Station Street c pre 1950 two storey semi-detached commercial building sited on a rectangular shaped lot and constructed to the boundaries of Station Street and Coronation Lane. The ground floor includes four retail tenancies, the first floor includes business premises.

9. The site has a frontage of 65.57m to Peats Ferry Road, a 5.78m splay to the corner and 75.1m to Station Street. The northern boundary of the site has a rear frontage of 47.9m to Coronation Lane, an irregular shaped laneway of varying width that is accessed off Station Street and services a number of properties that front Station Street, Peats Ferry Road and Coronation Street.

10. The site is elevated to the surrounding urban environment and has a cross falloff approximately 5% from the site corner to the northern boundary with Station Street.

11. It is opposite Hornsby Railway Station and the station entry and fronts the main pedestrian thoroughfares to the station for the Hornsby West Side area. The site frontages are the main ‘drop off’ for commuter traffic. The opposite side of Station Street includes the station taxi rank and the link road for the rail/bus interchange link road and Peats Ferry Road.

12. The site is also opposite Cenotaph Park, an open space area bounded by the rail/bus interchange link road.

13. The great Northern Railway Corridor divides the Hornsby Town Centre into East and West precincts, the site being within the western precinct. These precincts are linked by Hornsby Railway Station and the George Street pedestrian bridge.

The planning controls

14. The site is zoned B4 Mixed Use under the provisions of Hornsby Local Environmental Plan 2013 (LEP). The development is permissible with consent in that zone. Clause 2.3(2) of the LEP requires a consent authority to have regard to the objectives of a zone when determining a development application. The objectives of the B4 zone are:

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

15. Part 4 of the LEP contains Principal development standards with clause 4.3 Height of buildings and 4.4 Floor space ratio, relevant to the contentions in the case. The maximum height of the buildings as shown on the LEP map for the site is 77.5 m.

16. The site is within “Area 8” on the floor space ratio map which permits a maximum floor space ratio is 3.1 unless additional floor space is permitted under subclause (2D).

17. Clause 4.4(2D) is in the following form:

(2D) Despite subclause (2), the floor space ratio for development on land identified as “Area 8” on the Floor Space Ratio Map may exceed the floor space ratio shown for the land on the Floor Space Ratio Map if the development is for the purposes of:

(a) shop top housing, and

(b) any other land use permitted in the zone, other than residential accommodation, that comprises a floor space ratio of at least 1:1.

18. Clause 5.6 refers to Architectural roof features and is in the following form:

5.6 Architectural roof features

(1) The objectives of this clause are as follows:

(a) to permit variations to maximum building height standards for roof features of visual interest,

(b) to ensure that roof features are decorative elements and that the majority of the roof is contained within the maximum building height standard.

(2) Development that includes an architectural roof feature that exceeds, or causes a building to exceed, the height limits set by clause 4.3 may be carried out, but only with development consent.

(3) Development consent must not be granted to any such development unless the consent authority is satisfied that:

(a) the architectural roof feature:

(i) comprises a decorative element on the uppermost portion of a building, and

(ii) is not an advertising structure, and

(iii) does not include floor space area and is not reasonably capable of modification to include floor space area, and

(iv) will cause minimal overshadowing, and

(b) any building identification signage or equipment for servicing the building (such as plant, lift motor rooms, fire stairs and the like) contained in or supported by the roof feature is fully integrated into the design of the roof feature.

19. Clause 5.10 applies to Heritage conservation with subclauses (4) and (5) relevant to the application due to its proximity to a number of heritage items and the site’s location within the Peats Ferry Road Precinct, Hornsby West Side Heritage Conservation Area (HCA). Those subclauses are in the following form:

(4) Effect of proposed development on heritage significance

The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

(5) Heritage assessment

The consent authority may, before granting consent to any development:

(a) on land on which a heritage item is located, or

(b) on land that is within a heritage conservation area, or

(c) on land that is within the vicinity of land referred to in paragraph (a) or (b),

require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

20. The application has not been accompanied by either a heritage management document or a conservation management plan however a heritage report has been prepared in support of the application.

21. The site is opposite a number of heritage items which are located on the western side of Peats Ferry Road. The facades of those buildings, which are two storeys with parapets, are to be retained in any redevelopment of those sites in accordance with the council’s development control plan.

22. Clause 6.8 of the LEP was added under the provisions of Hornsby Local Environmental Plan Amendment 5 and relates to Design Excellence. The amendment was made on 25 September 2015 and savings provisions do not apply to its application. The clause is in the following form:

6.8 Design excellence

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

(2) This clause applies to development involving the erection of a new building or external alterations to an existing building, which will result in a building with a height of more than 29.6 metres.

(3) Development consent must not be granted to development to which this clause applies unless the consent authority considers that the development exhibits design excellence.

(4) In considering whether the development 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 development will improve the quality and amenity of the public domain,

(c) whether the development detrimentally impacts on view corridors,

(d) whether the development achieves transit-oriented design principles, including the need to ensure direct, efficient and safe pedestrian and cycle access to nearby transit nodes,

(e) the requirements of the Hornsby Development Control Plan,

(f) how the development addresses the following matters:

(i) the suitability of the land for development,

(ii) existing and proposed uses and use mix,

(iii) heritage issues and streetscape constraints,

(iv) the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,

(v) bulk, massing and modulation of buildings,

(vi) street frontage heights,

(vii) environmental impacts and factors such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind, reflectivity, water and energy efficiency and water sensitive urban design,

(viii) the achievement of the principles of ecologically sustainable development,

(ix) pedestrian, cycle, vehicular and service access and circulation requirements,

(x) the impact on, and any proposed improvements to, the public domain,

(xi) achieving appropriate interfaces at ground level between the development and the public domain,

(xii) integration of landscape design, including the configuration and design of communal access and communal recreation areas, to incorporate exemplary and innovative treatments and to promote an effective social atmosphere.

23. State Environmental Planning Policy No 55 – Remediation of Land (SEPP55) and applies to the application as do State Environmental Planning Policy (Infrastructure) 2007; State Environmental Planning Policy (Building Sustainability Index - BASIX) 2004 and Sydney Regional Environmental Plan No 20 – Hawkesbury Nepean River (No 2 – 1997).

24. There is dispute between the parties as to whether the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP65) and the associated Residential Flat Design Code/Apartment Design Guide apply to the application. It is the council’s position that it does however the applicant submits that it does not. That is because Mr Hemmings, for the applicant submits that pursuant to the provisions of clause 4(1)(a)(i) it only applies to the erection of a new building. As the applicant seeks concept approval only, he submits no approval to erect a building is sought. Mr Seton, for the council, says the concept proposal must be the erection of a new building.

25. Hornsby Development Control Plan 2013 (DCP) applies to the site with the provisions of Part 1 – General; Part 4 – Business, Section 4.5 Hornsby Town Centre and Part 9 Heritage most relevant to the application.

Background and the proposal

26. The development application now before the Court seeks approval pursuant to the provisions of s 93B of the EP&AAct for a staged development. The description of works is detailed in exhibit F as follows:

Pursuant to s83B of the Environmental Planning and Assessment Act 1979, the applicant seeks approval of the concept proposal at the site for:

• Demolition of existing buildings;

• 8 levels of basement parking;

• 1 basement loading dock;

• Retail premises at ground floor;

• Commercial premises at first floor;

• 22 levels of residential (shop top) housing above; and

• An architectural roof feature at level 25.

27. This description is an attempt to define the building envelope for the future development of the site which would be the subject of future development applications for all works including demolition and the erection of any building on the site.

28. There appears to have been tension between the parties as to the extent of information that is required to define building envelopes. The report to the JRPP included assessment of detail such as unit size however floor plans of the development have not been provided at any stage despite the fact that the elevations and footprints of individual floors show detailed design consideration. It is clear from the evidence of the applicant’s urban designer, Mr O’Grady that the proposal has been the subject of detailed design and it is this factor that concerns the council in relation to the size of the building envelope sought and the ultimate size of the building that may be the subject of the requisite future development applications.

29. It is the council’s position that a building envelope is, in accordance with the statements contained in the RFDC, definition of the extent of the overall building zone in plan and section within which a future building can be located and that building envelopes should be at least 20-25 percent greater than their achievable floor area to allow for building articulation. It submits that the building envelope sought is not in effect a building envelope because the applicant has demonstrated through the details provided, in particular the footprints, indicative wall lines, balcony locations and privacy treatments, that it intends to fill the whole of the envelope and that such would result in an unsatisfactory built form due to the excessive bulk of the building and inconsistencies with the planning controls for the site.

The issues

30. The contentions in the case are that the applicant has not adequately demonstrated that the impact on the surrounding built environment is acceptable; the building height is inappropriate, in particular in respect to the proposed roof structure; the floor space ratio is excessive; the proposed development will result in unacceptable urban design impacts and does not respond adequately to the desired future character of the Hornsby West Side Precinct; the application does not adequately address the design principles in SEPP65 and insufficient information has been provided in that regard; the development is unacceptable with respect to vehicular access and traffic movements on Station Street and is inconsistent with the West Side Precinct provisions of the DCP and the application is not in the public interest.

The evidence

31. The hearing commenced on site with evidence heard from one objector to the proposal. A person who supported the application did not give evidence.

32. The issues raised by the objector are summarised as follows:

• Site forms part of the historic side of Hornsby and should not be swallowed up by high rise developments;

• 25 storeys is out of character for the ‘old’ side and will overshadow the public domain;

• Area should be developed into a community/market orientated precinct with cafe areas;

• Need to retain historic facades;

• Inadequate details to assess traffic impacts;

• Lack of detail.

33. Expert evidence was provided by:

Traffic         Town Planning   Urban Design

Applicant          G Kennedy      P Fryar          J O’Grady

Respondent     T Wheatley      J Sneyd         K Castellanos

34. The traffic experts were not required for cross examination and provided a Joint Report, Exhibit 6. In response to an issue that arose during the site view, that is whether it would be possible to reduce the extent of laneway widening, produced further diagrams and advice (Exhibit G).

35. These experts had considered a submission the council had received from Transport NSW in response to referral of the application and agree that the response predated the amended plans and as such, many of the issues raised have now been addressed. They agree that any remaining issues are addressed in their report or could be addressed through appropriate conditions of consent.

36. In particular, they agree that adequate provision for the collection of waste can be made off Coronation Lane, that a splitter island should not be provided at the intersection of the lane and Station Street, the required car parking for the proposal can be met by the Concept Design and that the specific car parking arrangements together with alternative travel options should be submitted with the Stage 1 Development Application when a detailed Traffic and Car Parking Impact Assessment would also be lodged.

37. They also agree that traffic generated by the Concept Proposal was taken into account in the Hornsby West Side Traffic Study 2013. The results of that study show the redevelopment on the Hornsby West Side Precinct is feasible, subject to improvements to traffic signal co-ordination, extension of lane storage at key intersection, extension of Station Street to Peats Ferry Road opposite High Street, together with new signals and modification to existing traffic signals at the northern end of the precinct. The timing of that work would be prior to 2031.

38. The planning experts agree that the access to adjoining properties fronting Coronation Lane is overcome by the amended plans which now include the former “isolated site” and such access can be overcome by formalisation of rights of access across the proposed driveway off Station Street which would be conditioned. They also agree that the proposal does not seek variation to the existing Hornsby Railway Station bus interchange and the Station Street pedestrian access to the station; that it is consistent with the ‘Key Principles Diagram’ 4.5(g) of the DCP in terms of ground, first floor setbacks in that the amended proposal provides for a nil setback for the ground and first floor levels to Peats Ferry Road and Station Street as detailed in Table 4.5.4(c) of the DCP and also agree that the tower levels above podium to Station Street are not required to have a 3m setback, provided a tower element with articulation is provided to differentiate the podium from the tower.

34. In regard to building height, they agree that the residential tower (excluding ‘roof element’) complies with the maximum height requirement (77.5m) applying to the site under the LEP and that a development could be designed to include an architectural roof feature that exceeds, or causes the building to exceed, the height limits set by clause 4.3 under the provisions of clause 5.6 of the LEP. Ms Sneyd says the structure as proposed would not satisfy the provisions of clause 5.6 and would appear as an additional level, in excess of the maximum building height. Mr Fryar says that the proposal satisfies the definition and would be permitted under that clause.

35. There is no agreement in regard to the appropriateness of the height of the podium along Peats Ferry Road. The plans provide for a five level podium across the entire frontage whereas, the council, in its draft without prejudice consent conditions require the podium across the whole frontage to be a maximum of two storeys.

36. Whilst they agree that the ground floor setbacks for development fronting Peats Ferry Road and Station Street prescribed in the DCP are 0 metres with upper floor setbacks above 2 to 5 storeys being 6 metres along Peats Ferry Road and 1-3m fronting Station Street, Ms Sneyd interprets the provisions of the DCP to require a podium of 2 storeys for the frontage generally from the southern boundary of Lot 1, DP 105391 and the northern most boundary of the site and 5 storeys to the southern portion of the frontage to Peats Ferry Rd and the entire frontage of Station Street. She supports this opinion by reference to Figure 4.5(p) and the diagram Figure 4.5(o). Mr Fryar disagrees and refers to the ‘Key Principles Diagram’ in the DCP that he says depicts a consistent podium height along the Peats Ferry Road frontage with a transition to a 2 storey podium to sites to the north. However, during the hearing, it was agreed that the transition point as shown in Figure 4.5(0) – Podium Heights and Upper Floor Setbacks was at the midpoint of Lot 1 DP 105391, more closely aligned to that suggested by Ms Sneyd.

37. The effect of the agreed position of the parties in relation to the transition of the podium between 2 and 5 storeys is that the point is just over half way to the north of the intersection of Peats Ferry Road and Station Street and therefore, the DCP envisages a change in podium height at this point. Neither the plans before the Court or the draft condition reflect that requirement.

38. The planners disagree upon whether matters prescribed under SEPP65 should be deferred in consideration of the development application. They note Clause 70A of the Environmental Planning and Assessment Regulation 2000 (Regulation 2000) states:

Despite clause 50 (1) (a), the information required to be provided in a staged development application in respect of the various stages of the development may, with the approval of the consent authority, be deferred to a subsequent development application.

44. Mr Fryar says the council accepted the application without a Design Verification Statement and has not called for one. Because the application is seeking consent for a concept approval only under a staged development consent the final configuration and mix of units has not been determined and will be subject of a future development application to council noting the provisions of clause 70B of the Regulation 2000 which states:

Clause 50 (1A) applies in relation to a staged development application only if the application sets out detailed proposals for the development or part of the development.   

45. Ms Sneyd says the application seeks to defer matters that are critical to the development proposed. The certainty as to the ability to comply with requirements the applicant seeks to defer is not available. Further, the details within the submitted plans include details that confuse the extent of the development for which consent is being sought and could compromise the ability to ensure compliance with a concept plan if issued in further development applications. She says the issue is whether the staged development consent is appropriate for the development proposed as the appearance of the building is an important consideration. The LEP requires consideration of the building in terms of its appearance as it is located within a heritage conservation area and to determine compliance with Clause 6.8 Design Excellence. Some of the documents indicate consideration of SEPP65 whilst others seek to exclude consideration. She is concerned that deferral of matters relating to SEPP65 cannot guarantee that compliance will be achieved or that compliance may be compromised due to the form of the concept application and the requirement for future stages to comply with a Stage 1 development consent if granted and advocates that the Design quality principles under Part 2 of SEPP65 must be addressed other than those for amenity.

46. The urban designers agree that the proposal is a large building, from the eastern vantage points it will be perceived as a full elevation and from other points oblique views will be visible, a building envelope is as described at [30] and the Apartment Design Guide indicates that “the gross floor area of a building is typically 25-30% less than that of the envelope.” They also agree that there would be many ways to design a building on the site including an alternative built form incorporating a slim line tower (Annexure C to the Joint Report, Exhibit 8) and the concept of a roof feature is more effective to the proportion of the building in that vignette. FSR has an impact on the bulk and scale of a building and that no maximum floor space ratio applies to the site provided the terms of clause 4.42(D) of the LEP are met in relation to the amount of non-residential floor space.

47. In regard to podium height they agree that the proposal is not strictly compliant with the DCP figure 4.5(o) with regard to the setback above level 2 along Peats Ferry Road, that there should be a built form dialog on both sides of Peats Ferry Road up to level 2 and that level 1 should be entirely commercial expanding all the way to the area labelled Residential Common Property (garden), which can then be relocated in its exact shape and area to Level 2 (above podium) to be accessible directly from a residential area. This will achieve a better amenity and resolved the potential safety and security conflicts from having commercial uses next to residential.

48. No agreement was reached as to whether a built form dialog on both sides of Peat Ferry Road can be achieved by the architectural expression of the façade and not by the height of the podium, the FSR is excessive, the proposed articulation contributes to bulk and scale and the level of contribution of the roof feature to the overall bulk and scale.

49. Ms Castellanos says the non-compliance with the required setback above podium on Peats Ferry Road has the effect of eroding the proposed two storey traditional street wall height, which is an integral part of the character of this heritage precinct. Whilst she acknowledges the DCP provides for a part 5 storey parapet to Peats Ferry Road, it is her opinion that the development should contain a two storey podium for the length of the site as it would lead to a more balanced relationship on both sides of the street. A continuous podium height assists in balancing the two sides of the street as these have different applicable maximum heights (25 storeys on the site and 15 storeys on the western side). If all elements are different, podium heights and tower heights she questions where is the balance?

50. Mr O’Grady says that a visual relationship between existing and proposed built form on either side of Peats Ferry Road is not solely dependent on height. It is possible to create a dialog between built forms across the street using other mechanisms, such as architectural form. The proposal would result in a consistent 2 storey street wall of a coherent architectural language along the Peats Ferry Road frontage. Above this, the street setback would be variable up to five storeys and the architectural form would change to a curved plan shape veering away from the street edge with varying setbacks ranging from approximately 0.5m to approximately 3.0m. At Level 6 and above the floorplate steps back to a 6m setback from Peats Ferry Road. This arrangement would create an acceptable relationship between the street edges across Peats Ferry Road through a dialog and contrast in architectural form.

51. Mr O'Grady notes the controls call up a five storey parapet at zero setback for part of the Peats Ferry Road frontage extending north from the Station Street junction for an unspecified distance and then reverting to a two storey zero setback extending to the corner with Coronation Street. The length of the five storey parapet along Peats Ferry Road does not appear to be generated by any specific criteria. It simply stops at a random location along the street length. On the western side of peats ferry road however, the 2-3 storey parapet continues to the corner of Dural Street and beyond. The arrangement of the street wall as proposed is not substantially different from that which is indicated in Figure 4.5(o) and the resulting relationship to the streetscape would be acceptable.

52. He says the building has a clear base and tower and is articulated on the vertical and horizontal plane. Balconies project beyond the tower plan to project shadow lines on the elevation. The stepping of the building in plan form also contributes to interest in the facade. The urban designers agree that there is no numerical of control for FSR on the site. It’s built form limits are imposed by height and setback controls. Ms Castellanos says the proposal seeks to maximise the built form on the site regardless of the built form outcome. Whilst she agrees the site has the ability to exceed the 3:1 FSR she notes the issue is up to what amount and says the proposal does not achieve a positive outcome with regards to bulk and scale and it does not exhibit the expected level of design excellence for a site of this prominence. She concludes the proposed FSR is an overdevelopment; the quantum of proposed development is above that which will be adequate for the site.

53. Ms Castellanos says the elevations are overly articulated and done in a way that does not distinguish any portions of the elevation or accentuate the verticality of any particular segment of the facade as a separate element from the rest. The level of articulation results in a repetitive treatment that exacerbates the overall bulk and scale.

54. Mr O’Grady does not agree that the articulation of the proposed building is a contributing factor to bulk and scale and says the stepping of the building in plan form contributes to interest in the façade.

55. In relation to other contentions the urban design experts agreed that it would be appropriate to relocate all of the residential Common open space areas from the first floor commercial area to within the residential component of the development. This requirement can be addressed through conditions of consent.

Conclusion and findings

56. Because there is no FSR control applicable to the proposal development of the building envelope this is determined by the height development standard and those controls contained in the DCP. Provided the 25th Storey is a genuine architectural roof feature, the proposed building envelope would be compliant with the height development standard. The only other numerical controls that are contained within the Council’s planning documents are those for podium height, building width and building setback as prescribed in the DCP.

57. It is common ground that the DCP anticipates a change in podium height at a point almost midway along the Peats Ferry Road frontage with this height varying from five storeys across the southern section to 2 storeys along the northern portion. The development does not comply with control. Whilst the experts could not assist the Court in determining why the actual change was contemplated at this point, it is apparent that the point corresponds to a location in the site where a building envelope of 18m plus an allowance for balconies on either side of that envelope with a depth of 2.5 m could be constructed. As the site widened setbacks would be required to achieve the recommended 18m building width that is prescribed in both the DCP and recommended under SEPP65 and the associated design documents. For that reason I see merit in varying the podium height at this point and would not support a building envelope that extends from that point north beyond two stories as proposed by the applicant.

58. I note that Mr Hemmings proposed a condition of consent that would reflect the two storey podium height in that location and I consider that is appropriate that this is incorporated into any conditions should consent be granted. This would also ensure that the scale of development was more consistent with the heritage conservation area and the scale of heritage items opposite the site.

59. The most important matters that must be determined are the bulk and scale of the development. As stated above the LEP and DCP provide limited guidelines in terms of quantitative provisions. The Key Principals Diagram calls for a built form that provides a consistent street wall height along major streets to encourage a well scaled pedestrian environment. Tower forms to be setback from the podium level to reduce visual dominance. Highest buildings to be located at Gateway and iconic positions within the precinct.

60. More guidance is provided in Section 4.5.13 - Design Details. General descriptive measures for a building to be designed with external appearances that provide for a distinctive base, middle and a top. Tower forms should appear simple yet elegant and contribute to the overall skyline composition of the West side precinct with a delineated top to visually terminate the building. Towers should taper towards the sky to appear thinnest at the top. When commercial podiums are required, the podium should have minimal gap in the street wall and maintain a consistent building line. Corner buildings should be designed to address its neighbouring buildings, dual frontage and its turning of the corner. The building should step up at the corner and incorporate distinctive features to enhance the streetscape and incorporate a splay or square recess treatment to give form to the intersection and provide more circulation space for pedestrians at the corner. Roof features and lift overruns or service plants should be incorporated into the design of the roof to minimise visual intrusiveness and support an integrated building design.

61. Having regard to the evidence and the planning controls, I consider the proposed building envelope fails to provide sufficient detail to differentiate the podium from the tower and in fact the building envelope extends the podium along Station Street at levels 6-8 and provides minimal change to setbacks at the upper levels. Whilst the DCP does not quantify a minimum setback, Figure 4.5(p) does envisage the tower element to be setback to differentiate the tower from the podium. The building envelope proposed does not facilitate an appropriate level of articulation or setbacks along this façade and this adds to the bulk of the building. In addition, there is no distinct base, middle and top to the building. Whilst the podium does form a base, it is heavy in form and presentation to Station Street and higher than anticipated by the controls along the northern section of the site where it fronts Peats Ferry Road. The building does not taper to the sky.

62. The proposed building envelope above the podium level is bulky and, because it is wider than the 18m prescribed in the DCP and also recommended under the controls that would apply to assessment of future development applications under the provisions of SEPP65, it is inconsistent with the desired future character envisaged by the planning controls.

63. The urban designers agree that the planning controls do not call for a slim building but do agree that such a building would be a good outcome for the site. Mr O’Grady says the building envelope would present as proposed when applying the controls. However they do not agree that they building is bulky. The controls suggest the building should be elegant. Mr O’Grady says that it is not bulky and that an elegant building would be one of good proportion, responsive to its context and have good finishes. I agree that these parameters guide assessment of built form however accept Ms Castellanos’ opinion that the proposed building envelope is bulky and too large for the site. It does not demonstrate the built form anticipated by the council’s controls and I am not satisfied that any future building that may be contained within that envelope would be appropriate for the site.

64. My concerns are increased through the extent of detail, in particular, the indicative wall locations that are shown on the plan. This reflects a large and bulky building is anticipated rather than one that reflects the planning controls for the site. The staged development application provisions under Division 2A of the EP&AAct require that the determination of any further development application in respect of that site cannot be inconsistent with the consent granted. Accordingly, the extent of details shown on the plan provides inadequate flexibility to ensure that consistency and still provide a building that is of appropriate scale and bulk.

65. The building envelope provides an overwhelming bulk and scale to the street, poor proportions and lack of setbacks to define the base, middle and top of the tower. I cannot be satisfied that any future development application for a building to be fitted into the envelope proposed would be elegant and address the qualitative provisions of the DCP.

66. I do not consider that the Level 25 structure i.e. the mechanical services area as indicated on the plans, is an architectural roof feature, it is a storey however, given that the application is for a building envelope only, it may be possible to only have such a feature above the prescribed maximum building height of 77.5m. That alone is not a reason to refuse consent however, when combined with my assessment of the bulk and scale of the development against the desired future character for the site, it gives rise to further inconsistency with the planning controls and desired future character.

67. For these reasons, I do not consider that it is appropriate to grant consent for the concept building envelope as detailed in the Exhibit E plans.

68. The Orders of the Court are:

1. The appeal is dismissed;

2. Development Application 371/2015 for a staged development comprising demolition of existing structures and concept proposal for a 25 storey mixed use development is refused consent;

3. The exhibits, other than exhibits E and 2 are returned.

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Sue Morris

Commissioner of the Court

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Amendments

17 December 2015 - Minor representation error amended

Decision last updated: 17 December 2015