Gan v City of Sydney Council

[2021] NSWLEC 1370

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gan v City of Sydney Council [2021] NSWLEC 1370

Hearing dates:

8 June 2021

Date of orders:

25 June 2021

Decision date:

25 June 2021

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) The development application D/2020/347 for alterations and additions to a mixed use building at 480 Bourke Street, Surry Hills, is refused.

(3) The exhibits are returned.

Catchwords:

APPEAL – alterations and additions to a contributory building in a heritage conservation area – third-storey addition – breach of height and FSR development standards – character of the area – heritage character – adequacy of the request

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.3, 8.7

Land and Environment Court Act 1979, s 39

Sydney Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 5.10, Part 7 Div 1

Cases Cited:

Abrams v Council of the City of Sydney [2019] NSWLEC 1583

Buyozo Pty Limited v Ku-ring-gai Council [2021] NSWLEC 2

Chen v Auburn City Council [2015] NSWLEC 1379

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Landcorp Australia Pty Ltd v Council of the City of Sydney [2020] NSWLEC 174

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

Harold Gan (Applicant)
City of Sydney Council (Respondent)

Representation:

Counsel:
N Eastman (Applicant)
A Singh (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
City of Sydney Council (Respondent)

File Number(s):

2020/220346

Publication restriction:

No

Judgment

1. COMMISSIONER: Within the Bourke Street South Heritage Conservation Area in Surry Hills, a contributory building is located at the end of the block bounded by Bourke Street, Marshall Street and Phelps Street. It is currently a three-storey mixed use building, originally constructed as a two-storey building in 1869, with the later addition of the third storey in the 1960s. Mr Harold Gan seeks development consent for alterations and additions to the building, including partial demolition, and use of the building as a dwelling house with a ground floor home occupation. He lodged a development application with the Council of the City of Sydney (the Council). Following the expiry of the period after which an application is deemed to have been refused, Mr Gan lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The proposed development seeks to retain the existing basement and most of the external façade on Bourke and Phelps Street, demolish the rear portion of the building, the rear terrace, all internal walls, the ground floor slab and external windows, and construct a new dwelling with a new internal courtyard and new garage with car stacker. The third storey is proposed to be demolished, and a new third storey constructed with a bedroom with ensuite, a void over the internal courtyard, living and dining areas and a terrace facing Bourke Street. The floor area of the existing third storey is 36.2m², and the floor area of the proposed third storey is 82.94m² (excluding the outdoor terrace). A photo of the site at present, and a photomontage of the proposed development as seen from Bourke Street is shown at Figure 1.

3. The Council opposes the grant of development consent on the basis that the alterations and additions result in a height and a floor space ratio (FSR) that breach the applicable height and FSR development standards under the Sydney Local Environmental Plan 2012 (SLEP 2012). The Council’s position is that the proposed departures are not consistent with the objectives of the standards, and that the requests to vary each standard do not adequately address the matters required by cl 4.6 of the SLEP 2012. There is also a contention raised by the Council that the proposed third storey of the development would result in unacceptable impacts on the heritage significance of the Heritage Conservation Area, would be out of character in the heritage streetscape and have a negative visual impact as a result of its bulk and scale.

4. For the reasons that are set out below, I have determined that the written request concerning the height development standard does not adequately address that compliance with the height development standard is unreasonable or unnecessary, and that there are sufficient environmental planning grounds to justify the contravention of the height development standard. I have also formed the conclusion that the proposed development is not in the public interest as it is not consistent with the objectives of the height development standard.

The site and the locality

5. The subject site is identified as Lot 1 in DP 110315 and is located at 480 Bourke Street, Surry Hills. The site is located on the north-eastern corner of the intersection of Bourke Street and Phelps Street, and adjoins Marshall Street at the rear. It has a total area of 145m² and three street frontages with a frontage of 4.9m to Bourke Street to the west, 4.9m to Marshall Street to the east, and 29.1m to Phelps Street to the south.

6. The site contains a semi-detached terrace that is 3-storeys, which is a contributory building in the Bourke Street South Heritage Conservation Area. The building addresses the intersection with Bourke Street and contains a shop on the ground floor with a basement below, and two dwellings on the storeys above. There is no vegetation on the site, but substantial street trees are located directly south of the site on Phelps Street.

7. Surrounding development in the vicinity of the site on Bourke Street generally consists of low scale residential dwellings which are predominantly 2 storeys in height, with commercial uses on the corner sites at the intersection of Bourke Street and Phelps Street. Adjoining the site to the north is a 2-storey mixed use terrace with a ground floor restaurant and dwelling above, and further to the north is a row of 2-storey residential terraces. Two-storey terraces are also located south of the site, opposite Phelps Street, and to the west of the site at 545A Bourke Street and 547 Bourke Street, each of which have ground floor commercial uses.

8. A number of the two-storey buildings in the immediate locality on Bourke Street contain dormer windows to an attic. This includes the buildings to the north at 460, 462, 472A, 476 Bourke Street, a building to the north-west at 543 Bourke Street, and to the south west at 549 Bourke Street.

9. Within the immediate locality on Marshall Street, three-storey buildings are located at 55 and 56 Marshall Street. Beyond the immediate vicinity of the site but within the locality, buildings containing three storeys or more are also located at 521 Bourke Street, and on the intersection of Bourke Street with Arthur Street.

10. Beyond the immediate locality, the heritage conservation area contains diversity in scale, and in the statement of significance it is acknowledged that the area “represents complex layers of different periods of development, both in terms of its street layout, subdivision pattern and buildings”.

The planning framework

11. The site is located within the R1 - General Residential zone in the SLEP 2012, and development for the purpose of a dwelling house is permissible in the zone. The objectives of the zone are as follows:

•  To provide for the housing needs of the community.

•  To provide for a variety of housing types and densities.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To maintain the existing land use pattern of predominantly residential uses.

12. Pursuant to cl 4.3(2) of the SLEP 2012, and the Height of Buildings Map, the site is subject to a maximum height of 9m. The proposed development does not comply with this development standard, and has a maximum height of 10.54m. The breach of the height development standard is caused by the third storey of the proposed development.

13. Pursuant to cl 4.4 of the SLEP 2012, the maximum FSR that applies to the site is 1.5:1. The proposed development does not comply with the FSR development standard, but the extent of the non-compliance is in dispute.

14. Clause 5.10 of the SLEP 2012 concerns heritage conservation, and requires that the effect of the proposed development on the heritage significance of the area be considered prior to the grant of consent. At subcl (4) it provides:

(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).

15. The Sydney Development Control Plan 2012 (SDCP 2012) also applies to the site. The site is within the Surry Hills East locality under clause 2.11.5 of the SDCP 2012. The character statement for this locality includes the following:

“The quiet residential neighbourhood character typified by consistent low scale heritage buildings is to continue in Surry Hills East. Bourke Street plays a supporting role to the more active Crown Street within the overall structure of Surry Hills. Along Bourke Street the existing pattern of rows of late Victorian Terraces punctuated by corner shops and cafes is to be retained.”

16. The principles for the locality include the following:

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

(b) Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes.

…

(g) New development is to respond to the existing low scale of terrace houses. An increase in building heights may be considered on significant corner sites.

(h) Encourage non-retail adaptive re-use of terrace houses along Bourke Street, particularly on corner sites.”

17. The controls with respect to heritage conservation are contained in Part 3.9 of the SDCP 2012. Clause 3.9.6 concerns heritage conservation areas, and outlines that “[n]ew development in heritage conservation areas must be designed to respect neighbouring buildings and the character of the area, particularly roofscapes and window proportions.” Clause 3.9.6 also provides:

“(1) Development within a heritage conservation area is to be compatible with the surrounding built form and urban pattern by addressing the heritage conservation area statement of significance and responding sympathetically to:

(a) topography and landscape;

(b) views to and from the site;

(c) significant subdivision patterns and layout, and front and side setbacks;

(d) the type, siting, form, height, bulk, roofscape, scale, materials and details of adjoining or nearby contributory buildings;

(e) the interface between the public domain and building alignments and property boundaries; and

(f) colour schemes that have a hue and tonal relationship with traditional colour schemes

…

(4) Development within a heritage conservation area is to be consistent with policy guidelines contained in the Heritage Inventory Assessment Report for the individual conservation area.”

18. Similarly, clause 3.9.14 also requires that development within a heritage conservation area is to be consistent with the policy guidelines within the Heritage Inventory Assessment Report.

19. Clause 3.9.7 concerns contributory buildings, and includes the following provisions:

“(2) Alterations and additions must not significantly alter the appearance of principal and significant facades of a contributory building, except to remove detracting elements.

(3) Alterations and additions to a contributory building are to:

(a) respect significant original or characteristic built form;

(b) respect significant traditional or characteristic subdivision patterns;

(c) retain significant fabric;

(d) retain, and where possible reinstate, significant features and building elements, including but not limited to original balconies and verandahs, fences, chimneys, joinery and shop front detailing;

(e) remove unsympathetic alterations and additions, including inappropriate building elements;

(f) use appropriate materials, finishes and colours; and

(g) respect the pattern, style and dimensions of original windows and doors.”

20. Pursuant to Part 4.1.1 of the SDCP 2012, the site is subject to a maximum 2-storey height control. It also provides that, in a heritage conservation area, “an additional storey must not be visible above the ridge line or parapet of the existing building on the primary street frontage”. The objectives of the storey control are as follows:

“(a) Ensure development reinforces the existing and desired neighbourhood character with an appropriate height in storeys and street frontage height in storeys.

(b) Ensure development in heritage conservation areas relate to the existing neighbourhood character in terms of height in storeys and street frontage height in storeys.

(c) Retain and conserve the principle building form and its relationship to the street for heritage items and contributory buildings in heritage conservation areas.”

The objector evidence

21. The development application was notified by the Council for a period of 14 days. Two submissions were received and form part of the evidence, and one objector also gave evidence at the site inspection at the commencement of the hearing. The issues raised can be summarised as follows:

• The height and bulk compared to the existing streetscape;

• Height of the northern wall that adjoins 478 Bourke Street, and its proposed extension forward toward Bourke Street to accommodate the third-storey addition;

• The stormwater and drainage impacts on 478 Bourke Street from the inadequate stormwater drainage of water along the northern wall;

• The impact of construction including the potential for damage to 478 Bourke Street, noise from demolition and construction, and asbestos management; and

• The extent of demolition.

The expert evidence

22. Expert evidence on the town planning issues, including the breach of the height and FSR development standards, was given by Mr Andrew Darroch, a consultant town planner engaged by Mr Gan, and Ms Samantha Kruize, a town planner employed by the Council.

23. Expert evidence on the heritage impacts of the proposed development was given by Mr Zoltan Kovacs, a heritage consultant engaged by Mr Gan, and Mr Michele Grande, a heritage specialist employed by the Council.

Evidence on the character of the area

24. There is disagreement between the experts in relation to the character of the area and whether the third storey of the proposed development is appropriate in the context of that character. In understanding whether a building can be described as two or three storeys, it is relevant to consider the definition of “storey” in the SLEP 2012:

storey means a space within a building that is situated between one floor level and the floor level next above, or if there is no floor above, the ceiling or roof above, but does not include—

(a) a space that contains only a lift shaft, stairway or meter room, or

(b) a mezzanine, or

(c) an attic.

25. An “attic” is not considered a storey, and is defined as follows:

attic means any habitable space, but not a separate dwelling, contained wholly within a roof above the ceiling line of the storey immediately below, except for minor elements such as dormer windows and the like.

26. The evidence of Mr Darroch is that the subject site is a significant corner site that can support increased building height, and that the third storey is appropriate in a context in which there are a number of buildings within the vicinity of the site that are three or more storeys and exceed the 9m height control. His evidence is that in any point within the locality, you can turn your head and see a building that is 3-storeys or more. Mr Darroch opines that the controls in the SDCP 2012 contemplate additional height if it is set back from the street wall, and that the proposed third storey is appropriately set back between 3.8m and 4.9m from the western boundary and aligned with the ridgeline of 478 Bourke Street. He opines that this provides appropriate transition to the heritage item opposite and to the other contributory items.

27. Mr Kovacs largely agrees with Mr Darroch’s opinion on the character of the area. He opines that the local context is characterised by diversity in scale and storeys, and that two-storey buildings do not predominate that context. He opines that the third storey of the proposed development will not be highly visible, and will be consistent with the historic pattern where three-storey developments “are part of the historic evolution” of the fabric of the heritage conservation area (Ex 4 p 5). He opines that the two-storey streetscape of Bourke Street is not affected by the proposed development, and that the visibility to Phelps Street is acceptable as “in this context the site is full bound by streets and not seen or attached to any two-storey buildings in a direct northerly view”. Mr Kovacs notes that similar developments, with highly visible third-storey additions, have been approved elsewhere in the heritage conservation area.

28. The evidence of Ms Kruize is instead that the area is characterised by 2-storey buildings. Her evidence is that the immediate context around the subject site is defined as the intersection of Bourke and Phelps Street and along Marshall Street to the east, and that this immediate context consists of predominantly 2-storey buildings that are generally in keeping with the 9m height control. Her evidence is that the proposed building reduces the existing eastern and western setbacks of the current third-storey addition, and “results in a highly visible built form in an area that is characterised by 2 storey buildings” (Ex 3 p 12). Ms Kruize opines that the height and extent of the northern wall will overwhelm the 2-storey terrace to the north, and that the third storey “will appear visually inconsistent with the other corner sites at this intersection, which are all 2-storeys” (Ex 3 p 12).

29. The evidence of Mr Grande is that the radius relied upon by Mr Kovacs goes beyond the immediate surrounding of the subject site. His evidence is that where there are buildings with more than 2-storeys in the broader area referred to by Mr Kovacs, they are either heritage items that were originally more than 2-storeys, or are classified as ‘neutral’ or ‘detracting’ in the heritage conservation area. The exceptions occur where the third storey is not visible from the public domain and/or it complies with the controls in the SDCP 2014 and the SLEP 2012. As such, he opines that:

“additions on existing 2-storey buildings in this area are not aligned with the desired character of the HCA, and certainly that only 2 buildings out of 500 with an added third level are still Contributory. The proposed 3^rd storey on the subject building constitutes an incongruity for Contributory buildings in this area” (Ex 4 p 7).

In the immediate surrounding of the subject site, he opines that “the proposed 3^rd floor volume in its current form largely overbears the roofscape and disrupt this consistency and balance.” He observes that:

“Currently, the decorated parapet of 480 Bourke St is largely read against the sky, apart from the section where the current intrusive volume sits. The proposed third level would delete this visual aspect generally for all the extent of the parapet” (Ex 4 p 9).

The breach of the development standards

30. As outlined above, the proposed development does not comply with either the height or the FSR development standard.

31. The proposed building has a maximum height of 10.54m, which is 1.54m above the maximum height development standard of 9m. The lateral extent of the contravention above the height development standard is the full area of the third storey, which is 82.94m².

30. The proposed FSR also exceeds the FSR development standard of 1.5:1. This development standard would permit 217.85m² of gross floor area (GFA) on the site. The extent of the breach of the FSR depends on what areas the GFA includes. The definition of “gross floor area” is as follows (emphasis added):

gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes—

(a)  the area of a mezzanine, and

(b)  habitable rooms in a basement or an attic, and

(c)  any shop, auditorium, cinema, and the like, in a basement or attic,

but excludes—

(d)  any area for common vertical circulation, such as lifts and stairs, and

(e)  any basement—

(i)  storage, and

(ii)  vehicular access, loading areas, garbage and services, and

(f)  plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and

(g)  car parking to meet any requirements of the consent authority (including access to that car parking), and

(h)  any space used for the loading or unloading of goods (including access to it), and

(i)  terraces and balconies with outer walls less than 1.4 metres high, and

(j)  voids above a floor at the level of a storey or storey above.

33. Whereas Mr Darroch says that the area of the car space and storage within the garage should be excluded from GFA, Ms Kruize has included the area within the garage that is not required for the car stacker.

34. A question arises concerning whether there are “any requirements of the consent authority” for car parking, which results in the area for car parking being excluded from the GFA calculation. There are no minimum requirements for the provision of car parking in either the SLEP 2012 or SDCP 2012, and the SLEP 2012 prevents consent from being granted to development that provides ancillary car parking above the stipulated maximum number. The stipulated maximum applicable to the proposed development, pursuant to Part 7 Division 1 of the SLEP 2012, is 2 car parking spaces. The evidence of Ms Kruize is that whilst the Council does not have any parking requirements that necessarily excludes car parking from the GFA calculation in accordance with the definition above, it is the practice of the council officers to exclude car parking from that calculation, up to the applicable maximum.

35. Based on the calculation of the FSR of the proposed development by Mr Darroch, the FSR is 1.84:1, which is a 22.7% variation to the FSR development standard and results in an additional 49m² of floor space.

36. The calculation of the FSR of the proposed development by Ms Kruize is 1.94:1, which is a 29% variation to the FSR development standard and an additional 63m² of floor space.

37. Should the car space also be included in the calculation of the GFA, the total FSR of the proposed development is 2.06:1, which is a 37.3% variation to the FSR development standard and an additional 81.4m² of floor space above what is permitted.

38. It is common ground that the existing building also exceeds the FSR development standard, and has a FSR of 1.91:1.

39. Nevertheless, as the proposed development contravenes both the height and FSR development standard, development consent cannot be granted except in accordance with cl 4.6(2) of SLEP 2012. Clause 4.6 provides, at (2), (3) and (4):

(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.

40. In considering whether the state of satisfaction required by cl 4.6(4)(a) has been met, I summarised the relevant principles in Abrams v Council of the City of Sydney [2019] NSWLEC 1583 as follows:

“32 Consistent with the decision of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (“Initial Action”), for there to be power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that:

• The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)),

• The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)),

• The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), and

• The proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)).

33 Consistent with the decision of the Court of Appeal in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130, the Court, in exercising the functions of the consent authority, must “in fact” be satisfied of the above matters. The state of satisfaction that compliance is “unreasonable or unnecessary” and that there are “sufficient environmental planning grounds” to justify the contravention (the first two dot points above) must be reached only by reference to the cl 4.6 request. Whilst the evidence in the proceedings can assist in understanding the request and in considering the adequacy of the request, it cannot supplement what is in the request. On the other hand, the state of satisfaction that the proposed development is in the public interest (the last two dot points above) can be reached by considering the evidence before the Court, without being limited to what is contained in the cl 4.6 request.

34 A further precondition in cl 4.6(4), which must be satisfied before the power can be exercised to grant development consent for development that contravenes a development standard, is that the concurrence of the Secretary has been obtained.”

41. Pursuant to s 39(6) of the Land and Environment Court Act 1979, the Court has the power to grant development consent without obtaining the concurrence of the Secretary.

42. The objectives of the height development standard are as follows (at cl 4.3(1) of the SLEP 2012):

4.3 Height of buildings

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

(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,

(e) in respect of Green Square—

(i) to ensure the amenity of the public domain by restricting taller buildings to only part of a site, and

(ii) to ensure the built form contributes to the physical definition of the street network and public spaces.

43. The objectives of the FSR development standard are as follows (at cl 4.4(1) of the SLEP 2012):

4.4 Floor space ratio

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

(a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future,

(b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic,

(c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure,

(d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality.

44. At the commencement of the hearing, leave was granted to Mr Gan to rely on amended written requests concerning the breaches of the height and FSR development standards. With respect to the breach of the FSR development standard, a further amended request is also before the Court for consideration (Ex D) in the event that I consider the FSR is calculated in the manner set out in the evidence of Ms Kruize.

The written request concerning the breach of the height development standard

45. The written request concerning the breach of the height development standard was prepared by Mr Darroch and is dated May 2021 (Ex B). It outlines that the works for the proposed development will restore the existing building, “which is currently at risk of structural failure”, and to demolish and rebuild the upper level addition. It also outlines that the resulting development will breach the height development standard with a height of 10.54m, but will not exceed the current building height, which has been calculated by the architect to be 10.8m.

46. The written request argues that compliance with the height development standard is unreasonable and unnecessary on the basis that the objectives of the height development standard are achieved notwithstanding the non-compliance with the standard. This is the first of the five ways that can be used to establish that compliance is unreasonable or unnecessary, as described by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827. In doing so, the written request relies on the context of the site as one that is characterised by buildings that breach the 9m height limit, with a number of buildings that are 3-storeys or greater. Further, in addressing the second objective, which concerns appropriate height transitions, the written request relies on the eastern and western setbacks, and the proposed break in the built form around the central courtyard.

47. The written request outlines a number of grounds that it argues constitute environmental planning grounds that justify the contravention of the height development standard. The principal environmental planning ground that is advanced is that the building requires very significant remedial works in order for it to be habitable and conserved, and the proposed works will stabilise and restore the building. The request then states that the works also introduce a three-storey internal courtyard to improve internal amenity “and break the form on the upper level providing appropriate articulation and transition”. The request relies on the fact that the height will be lowered as a result of the proposed development, and that the works above the height development standard have no adverse impact. Further, the request states that this results in a better planning outcome, and allows the adaptive re-use of the contributory building. Under the heading “The public benefit of maintaining the development standard” the request also articulates some further grounds to justify the contravention of the standard, by arguing that compliance with the height development standard “would result in an inconsistent building form” and that “the proposed variation to the Height of Buildings standard therefore allows the site to better meet the objectives of the DCP and the desired future character of the area” (Ex B p 23).

48. The request also addresses the requirement for the proposed development to be in the public interest as a result of its consistency with the objectives of the zone and the objectives of the standard.

The written request concerning the breach of the FSR development standard

49. The written request concerning the breach of the FSR development standard is also dated May 2021 (Ex C), and is in similar terms to the request concerning the height development standard. As set out above, there is a further written request (Ex D), which is dated June 2021, which Mr Gan relies upon in the event that I consider that the FSR exceedance is what was calculated by Ms Kruize. Both requests were prepared by Mr Darroch, and the difference between the requests is only the calculation of the FSR of the proposed development and, therefore, the extent of the numerical exceedance.

50. In the introduction, the written request states that all of the works that are proposed “in excess of the 1.5:1 FSR control relate only to improving the amenity of the space which exists and additions are considered sympathetic to the building and the existing form” (Ex C p 9).

51. Similar to the written request concerning the height development standard, the written request for the FSR development standard argues that compliance with the FSR development standard is unreasonable and unnecessary on the basis that the objectives of the FSR development standard are achieved notwithstanding the non-compliance with the standard. In doing so, the request argues that the FSR of the proposed development will meet the anticipated development needs and will provide for the amenity of the occupants.

52. In similar terms to the request concerning the height development standard, the written request concerning the FSR development standard outlines a number of grounds that it says constitute environmental planning grounds that justify the contravention of the standard. Again, the principal ground relied upon is that the proposed development will stabilise and restore the building, and that the proposed works will also introduce a three-storey courtyard to improve internal amenity and break the form on the upper level to provide “appropriate articulation and transition”. The request argues that this “will cause works to occur at a FSR above 1.5:1”. The request further says that the proposed development is well placed to accommodate the principle for “an increase in building heights may be considered on significant corner sites” as set out in the locality statement within the SDCP 2012, and that there are no adverse impacts occasioned by the proposed development or by the breach of the FSR development standard. Similar to the request concerning the height development standard, additional grounds are set out under the heading “The public benefit of maintaining the development standard”. This includes that requiring compliance with the FSR development standard “would result in an inconsistent building form”, and that the variation to the development standard “allows the site to better meet the objectives of the DCP and the desired future character of the area” (Ex C p 26).

53. The request also addresses the requirement for the proposed development to be in the public interest as a result of its consistency with the objectives of the zone and the objectives of the standard.

The evidence concerning the written requests

54. Mr Darroch opines that the two written requests each adequately address the matters required to be addressed.

55. I note that in the expert report, Mr Darroch gave an opinion that the requests are not required as the existing building already breaches both development standards (relying on a decision in differing circumstances in Landcorp Australia Pty Ltd v Council of the City of Sydney [2020] NSWLEC 174). Mr Eastman, counsel for Mr Gan, indicated that this is not relied upon, and in my view such an argument is not sustainable. The circumstances in Landcorp Australia Pty Ltd v Council of the City of Sydney are readily distinguishable.

56. Mr Darroch’s evidence is that the existing building contains three storeys and has a three-storey wall adjoining the rear private open space of 478 Bourke Street, and that the proposed development reduces the height and the FSR on the site. His evidence is that the proposed built form is appropriate in the context of the site and in the context of the built form within the locality.

57. On the contrary, the evidence of Ms Kruize is that the written request concerning the height development standard does not demonstrate that the objectives of the standard are achieved notwithstanding the non-compliance. She opines that the proposed development does not comply with objective (a) or (b) of the development standard.

58. In relation to (a), which is “to ensure the height of development is appropriate to the condition of the site and its context”, Ms Kruize’s evidence is that the written request seeks to rely on buildings that are detracting or neutral buildings that should not be replicated, and on contributing or heritage listed buildings with different original built forms. Her evidence is that the condition of the site and its context is not characterised by buildings 3 storeys or greater, and excess of 9m, contrary to what is put in the request. Rather, her evidence concerning the condition of the site and its context is that the immediate context around the subject site consists of predominantly 2-storey buildings that are generally in keeping with the 9m height control. She also notes that all other corner buildings at this intersection are two storeys in height, and buildings along Bourke Street to the north and south, Phelps Street to the east and west, and Marshall Street to the rear of the site are predominantly 2-storeys in height. Accordingly, she considers that it has not been demonstrated that the highly visible, non-compliant addition proposed to the contributory building, is consistent with objective (a) of the height development standard

59. In relation to objective (b), which concerns height transitions, she observes that the request relies upon the proposed eastern and western setbacks, and the split of the addition around the central courtyard. Her evidence is that, contrary to what is put forward in the request, the proposed building reduces the existing eastern and western setbacks of the current third storey, “and results in a highly visible built form in an area that is characterised by 2-storey buildings.” Her evidence is that the extent of the northern wall will overwhelm the two-storey terraces to the north, and the third storey will be visually inconsistent with the other corner sites at this intersection. She opines that the proposed central courtyard does not meaningfully reduce the overall bulk.

60. Similarly, Ms Kruize considers that the written request concerning the breach of the FSR development standard does not establish that the objectives of the standard are met notwithstanding the non-compliance. In particular, objective (d) is “to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality”. She opines that the written request has not adequately demonstrated that the proposal reflects the desired future character as it does not satisfy the character statement and principles of the Surry Hills East Locality from the SDCP 2012.

61. The evidence of Ms Kruize is also that neither of the written requests establish environmental planning grounds that are sufficient to justify the contravention of the height and FSR development standards. She opines that the remedial works for the preservation of the building and the improved amenity do not justify the proposed height and FSR, and does not agree that there are no adverse impacts by the additional height and FSR, given that the third storey results in a bulk and scale impact to the terraces to the north of the site and the streetscape within the heritage conservation area.

54. Ms Kruize also disputes that there is an actual reduction in height and FSR as a result of the proposed development, given that the top of the ridge of the current building has not been surveyed, and on the basis of her own calculations of the proposed FSR.

The applicant’s submissions

63. Mr Gan makes a number of submissions in support of the proposed development, and in support of the written requests concerning the breach of the height and FSR development standards.

64. In relation to the extent of the non-compliance with the height development standard, Mr Gan submits that the Court can rely on the architect’s calculation of the current height of the building, so as to conclude that the proposed development results in a reduction in height of built form on the site.

65. In relation to the extent of the non-compliance with the FSR development standard, Mr Gan submits that the exclusion of “car parking to meet any requirements of the consent authority” from the calculation of the GFA, in accordance with its definition in the SLEP 2012, extends to maximum requirements, consistent with the practice of the council officers. It was submitted, on behalf of Mr Gan, that such an approach is consistent with what is said by Commissioner Pearson in Chen v Auburn City Council [2015] NSWLEC 1379. Mr Gan submits that this exclusion of floor area would extend up to 2 car spaces and to the entire area within the garage, such that the FSR of the proposed development is less than that of the building currently on the site. In any event, Mr Gan says that if I find that the area around the car space is included in GFA, the further written request (Ex D) is relied upon.

66. Mr Gan points out that the existing building already possesses a visible third storey, and submits that the proposed development ought to be considered responsive to a context in which three-storey buildings can be seen from any viewing point in the locality. Mr Gan notes that, in the course of the site inspection, it was observed that there were 3-storey wall heights that presented to the pocket park on Bourke Street. Accordingly, Mr Gan submits that a three-storey building is not an anomaly in the locality or in the heritage conservation area, and fits within its context.

67. In support of the written requests concerning the breach of the height and FSR development standards, Mr Gan submits that the preservation of the existing contributory building is a legitimate environmental planning ground that advances the objects of the EPA Act for orderly and economic development. Mr Gan points out that the structural report relied upon in the request, which is also in evidence (Ex A Tab 17), clearly demonstrates that remedial works are required immediately. Mr Gan also submits that the amenity given to the site by the proposed development should not be excluded in considering the requests. The internal courtyard allows solar penetration into the internal areas of the building. Mr Gan submits that the design of the proposed development is a reformed and contemporary response for a contributory building, enabling the preservation of the building, with a breach of the height development standard that allows the utilisation of the area behind the parapet, resulting in a height and bulk without any adverse impacts and with a central courtyard to improve internal amenity.

The Council’s submissions

68. The Council relies on the evidence of Ms Kruize with respect to the adequacy of the written requests concerning the breach of the height and FSR development standards.

69. The Council submits that, whether or not the proposed development reduces the vertical height of the built form when compared to what is currently on the site, the proposed third storey is bulkier than the current third storey and is highly visible.

70. Whilst the Council acknowledges that the character of the area is mixed and eclectic, it submits that it is clear that the site is surrounded by two-storey developments and that you have to walk beyond the immediate vicinity of the site to find a height that is greater than 2-storey. The Council points out that this reflects the fact that the area has a two-storey control pursuant to the SDCP 2012, which works well with the 9m height development standard pursuant to the SLEP 2012. In such circumstances, the Council submits that any replacement of the unsympathetic third storey should minimise its visual prominence, which the proposed development does not do. The Council points out that even from the photomontage (Figure 1), it is clear that the third storey is visually prominent when viewed from the intersection.

71. Further, the Council submits that the statement in the SDCP 2012 that encourages additional height on corner sites does not serve to exempt a corner site from the applicable controls, and the desired future character of the area can be discerned from the controls.

72. In relation to the calculation of the FSR, the Council submits that a plain reading of (g) within the definition of “gross floor area” should be preferred such that the word “requirement” is construed in accordance with its plain and ordinary meaning. The Council submits that this is consistent with the reasoning in Buyozo Pty Limited v Ku-ring-gai Council [2021] NSWLEC 2, which concerned the meaning of (h). The Council says that a plain reading of the words “car parking to meet… requirements” means that this concerns ‘requirements’ and does not include a maximum limit on the number of car parking spaces provided. As such, the Council submits that the car parking that is provided ought not be excluded from the GFA in calculating the FSR. The Council therefore submits that the Court would find that the FSR of the proposed development is actually 2.06:1, in relation to which there is no written request as required by cl 4.6 of the SLEP 2012.

73. Whilst the Council acknowledges that the engineer’s report points out the structural issues with the building and the remedial works required, the Council points out that nothing in the report establishes that a third storey or FSR exceedance is required to carry out restoration of the building.

74. The Council submits that whilst the heritage experts differ in their opinion on the context of the site and whether the proposed development fits within the area, the heritage character can be ascertained from the descriptions in the statement of significance for the heritage conservation area. In particular, the descriptions of Bourke Street north and Phelps Street are as follows:

“Bourke Street north (Devonshire to Fitzroy)

A street of predominantly Victorian character with groups of Federation terraces. Predominantly two storeys in scale on both sides, special attention should be shown to preserving its consistency in terms of mass and style. Dormer windows may be appropriate and can be considered on merit. Face brick on Federation terraces should remain unpainted. The street contains important street trees that should not be removed. Sections of sandstone kerbing are present and should be maintained with missing sections rebuilt.

Street Rating: A”

“Phelps Street

A street of predominantly Victorian character, featuring a number of mid-Victorian terraces and key corner stores at the intersection with Bourke Street. The context of the building should be protected and responded to if additions or new development is proposed. Dormer windows are inappropriate and should be discouraged. The street contains important street trees that should not be removed.

Street Rating: B”

75. The Council points out that the “context of the building” as a key corner store should be protected, and that dormers are inappropriate on Phelps Street, and relies on the evidence of Mr Grande that the proposed alterations and additions increase the bulk and mass of a non-complying detracting element. The Council submits that the breach of the applicable development standards does not protect the building within its context.

The written request for the height development standard does not adequately address the required matters

76. For the reasons that follow, I am not satisfied that the written request for the height development standard adequately addresses that compliance is unreasonable or unnecessary, or that there are sufficient environmental planning grounds to justify the contravention of the height development standard.

The written request does not demonstrate that compliance is unreasonable or unnecessary

77. I am not satisfied that the request demonstrates that the proposed development achieves objectives (a) and (b) of the height development standard notwithstanding the non-compliance. As set out by Preston CJ in Wehbe v Pittwater Council, compliance with the height development standard is the “usual means by which the relevant environmental or planning objective is able to be achieved” (at [43]).

78. As such, compliance with the height development standard on the site is the usual means by which the proposed development will “ensure the height of development is appropriate to the condition of the site and its context” (objective (a)) and will “ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas” (objective (b)). In the absence of compliance with the height development standard, the request must demonstrate that there is some other way in which these objectives are met by the proposed development, such that compliance is unreasonable and unnecessary.

79. The written request seeks to demonstrate that objective (a) is met by pointing to buildings in the area that are 3-storeys in height, and by drawing the conclusion that “the condition of the site and its context is characterised by buildings 3 storeys and [greater] and in excess of 9m particularly on street corners”. I do not accept this characterisation of the condition of the site and its context. Instead, I accept the evidence of Ms Kruize that the “condition of the site and its context” can be confined to the more immediate context of the site than the extent of the area relied upon in the written request. I accept her evidence that the context of the site is the intersection of Bourke and Phelps Street, buildings to the north and south along Bourke Street, to the east and west along Phelps Street and along Marshall Street to the east, which consists of predominantly 2-storey buildings that are generally in keeping with the 9m height development standard (with exceptions only at 55 Marshall Street and 521 Bourke Street). Further, all of the buildings in the immediate context at the intersection of Phelps Street and Bourke Street are two storeys in height. By failing to acknowledge this context, the request fails to establish that the height of the proposed development is appropriate to this context, as required by objective (a). For this reason, the request fails to establish that the proposed development achieves objective (a) of the height development standard.

80. Further, whilst the proposed development reduces the vertical extent of the height when compared to the building presently on the site, the height of the proposed development is more visually prominent due to the increase in the extent of built form above the height development standard and the increased lateral extent of the height that is visible above the parapet. As a result of the condition of the site, this is highly visible when viewed from the intersection. Accordingly, insofar as the request relies on the decrease in vertical height brought about by the proposed development, I am not satisfied that the request establishes that the height of the proposed development is appropriate to the condition of the site, which is another requirement of objective (a). For this reason also, the request fails to establish that the proposal development achieves objective (a).

81. Additionally, I consider that the request fails to establish that the proposed development achieves objective (b). It seeks to do so by relying on the eastern and western setbacks, the alignment of the western setback with the ridge of the adjacent terrace, the break in the upper storey for the internal courtyard, and the siting appropriately within the street tree canopy. I do not accept that these matters are sufficient to establish that the proposed development ensures “appropriate height transitions between new development and heritage items and buildings in heritage conservation areas”. The proposed development is visually inconsistent with the other corner sites at this intersection by the introduction of a third storey that is highly visible. As the lateral extent of the height that is visible above the ridgeline of the parapet is significant and spans a large portion of the southern elevation, the eastern and western setbacks and the break in the built form are not sufficient to achieve an appropriate transition to the buildings that present to the intersection, which include both a heritage item (at 545A Bourke Street) and buildings that form part of the heritage conservation area. I also accept the evidence of Ms Kruize that the height will overwhelm the two-storey terraces to the north that form part of the heritage conservation area. The alignment of the western setback with the ridge of the adjacent terrace will mitigate this somewhat, but will nevertheless result in a northern wall height that does not transition appropriately to the adjacent terrace, which is two storeys. Further, the siting of the third storey within the street tree canopy does not reduce the visibility of the western portion of the third storey from the intersection. Accordingly, the matters raised in the request are not adequate to establish that objective (b) of the height development standard is achieved notwithstanding the non-compliance with the standard.

82. By failing to consider the actual “condition of the site and its context” in relation to objective (a), and by failing to establish that the proposed development provides an appropriate height transition for objective (b), the request therefore does not demonstrate that the objectives of the height development standard are achieved notwithstanding the non-compliance with the standard. As this was advanced as the only basis upon which compliance is unreasonable or unnecessary, I am not satisfied that the written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. Therefore, the satisfaction required by cl 4.6(4)(a)(i) of the SLEP 2012 has not been met and there is no power to grant development consent to the proposed development. Of itself, this is a sufficient basis upon which the development application must be refused.

The written request does not demonstrate that there are sufficient environmental planning grounds

83. Additionally, I am not satisfied that the request establishes that there are sufficient environmental planning grounds to justify the contravention of the height development standard. As commonly cited, Preston CJ made it clear that the “focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds” (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [24]).

84. To determine if I am satisfied that there are sufficient environmental planning grounds advanced in the request, there are three elements for consideration. Firstly, the grounds advanced must constitute “environmental planning grounds”. Secondly, they must be tethered in some way to the breach of the development standard so as to justify, or inform, the breach. Thirdly, I must be satisfied that they are “sufficient” to justify, or inform, the aspect or element that contravenes the development standard.

85. In relation to the written request in the present development application, I accept that the preservation of a contributory building through the carrying out of remedial works constitutes an environmental planning ground, as does the improvement of internal amenity through the internal courtyard. The former achieves the objective of the EPA Act “to promote the sustainable management of built and cultural heritage”, and the latter “to promote good design and amenity of the built environment”.

86. However, I do not accept that either of these environmental planning grounds justify the breach of the height development standard. There is no evidence that the additional height is a result of, or is required for, the remedial works. Similarly, there is no evidence that the additional height above the development standard is required to achieve the internal amenity afforded by the internal courtyard.

87. The request also relies on there being an absence of external impacts from the third storey, such as overshadowing or privacy impacts. The avoidance of impacts constitutes an environmental planning ground, as it similarly promotes “good design and amenity of the built environment” in accordance with the objects of the EPA Act. However, even if I accepted that the proposed third storey does not have any external impact (which is disputed by Ms Kruize), the lack of external impacts does not actually arise from the breach of the height development standard so as to justify the breach. Even if the lack of external impacts could be tethered to the breach of the height development standard, the lack of external impacts is not sufficient to justify the lateral extent of the breach of the height development standard, which is a total of 82.94m² when considered on the 2D plane. I note that it is that lateral extent, and the fact that it extends a significant portion of the southern elevation, that makes the third storey highly visible.

88. Further, the request states that compliance with the height development standard “would result in an inconsistent building form” and that the contravention of the height development standard reflects the desired future character of the area. Both of these grounds constitute environmental planning grounds, as they “promote the orderly and economic use and development of land” and “promote good design”, consistent with the objects of the EPA Act. However, I do not accept that these grounds are actually made out by the request so as to justify the contravention. Contrary to what is set out in the request, the contravention of the height development standard does not reflect the desired character of the area. Instead, it results in a proposed third storey which is contrary to the context of the site and contrary to the desired future character of the area as expressed in the applicable 2-storey control. I accept the submission made by the Council that the SDCP 2012 cannot be interpreted, at (g) of the locality principles, to contemplate additional storeys above the storey control for corner buildings, and that the SDCP 2012 cannot be interpreted to allow additional storeys above the storey control if they cannot be seen. Mr Darroch’s evidence in that respect is misconceived, as are the contents of the written request that rely on the same.

89. Further, there is nothing in the request that supports the proposition that compliance would result in an “inconsistent building form”, particularly given the prevalence of 2-storey buildings in the context of the site and that each of the buildings in the intersection are 2-storeys in height.

90. For all of these reasons, I am not satisfied that the written request has adequately addressed that there are sufficient environmental planning grounds that justify contravening the development standard.

91. This also is a sufficient basis upon which the development application must be refused.

The proposed development is not in the public interest

92. Further, contrary to cl 4.6(4)(a)(ii), I am not satisfied that the proposed development is in the public interest in circumstances where it is not consistent with objectives (a) and (b) of the height development standard, largely for the reasons set out in my findings at [79]-[81] with respect to the adequacy of the request to demonstrate these objectives are achieved. I consider that, given that the immediate context of the site is predominantly two-storey built forms and given the description of Bourke Street north and Phelps Street in the Statement of Significance for the heritage conservation area, the proposed development is not of a height that is appropriate to the condition of the site and its context, contrary to objective (a).

92. Similarly, I consider that it does not ensure appropriate height transitions between itself, as a new development with a third storey, and heritage items or buildings within the heritage conservation area, contrary to objective (b). Instead, the height of the proposed development arises from a third storey that is visually prominent in the streetscape as a result of the lateral extent to which it exceeds the height development standard, which is visible above the parapet for a significant portion of the southern elevation and when viewed from the intersection. As such, the third storey is inconsistent with the predominant built form context of the site, which is 2-storey buildings, some of which contain dormer windows to attics, and is inconsistent with the height of the heritage buildings and buildings in the intersection and adjacent to the site.

The written request for the FSR development standard

94. Given my findings in relation to the breach of the height development standard, I need not consider the breach of the FSR development standard.

95. I note, however, that where there is a dispute between the parties with respect to the calculation of the GFA and therefore of the extent of the exceedance of the FSR development standard, there is no reason apparent to me as to why a single written request cannot deal with the various alternatives. In my view, a wrong calculation does not exclude a written request from being considered, but a decision-maker would have to calculate the extent of the exceedance to determine whether there are sufficient environmental planning grounds to justify that exceedance. There is no reason to undertake that task in circumstances where I have found that the state of satisfaction required by cl 4.6(4)(a) concerning the contravention of the height development standard has not been reached.

The outcome of the appeal

96. Having not reached the state of satisfaction required by cl 4.6(4)(a) concerning the contravention of the height development standard, cl 4.6(4) of the SLEP 2012 prescribes that development consent must not be granted. There is, therefore, no power to grant development consent and the development application must be refused.

97. The Court orders that:

1. The appeal is dismissed.

2. The development application D/2020/347 for alterations and additions to a mixed use building at 480 Bourke Street, Surry Hills, is refused.

3. The exhibits are returned.

………………………

J Gray

Commissioner of the Court

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Decision last updated: 25 June 2021