Governor Wentworth Pty Ltd v Council of the City of Sydney

Case •

[2018] NSWLEC 1233

•

05 June 2018

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Governor Wentworth Pty Ltd v Council of the City of Sydney [2018] NSWLEC 1233
Hearing dates: 26 March 2018
Date of orders: 05 June 2018
Decision date: 05 June 2018
Jurisdiction:Class 1
Before: O’Neill C
Decision:

1. The appeal is upheld.
2. Modification Application D/2015/920/A to modify the concept development consent and Development Application No. D/2016/1463 for the adaptive reuse of the existing 9 storey former warehouse building, demolition of the existing 3 storey commercial building and construction of a 19 storey mixed use building at 49-53 and 47 Wentworth Avenue, Sydney, are approved, subject to the conditions of consent at Annexures A and B.
3. The exhibits, other than exhibits 1 and C, are returned.

Catchwords: MODIFICATION APPLICATION AND DEVELOPMENT APPLICATION: modification of Stage 1 development consent; Stage 2 development application; adaptive reuse of former warehouse building, demolition of adjoining commercial building and construction of a 19 storey mixed use building for hotel and residential accommodation; no issues pressed following amendments made to the proposal.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Category:Principal judgment
Parties: Governor Wentworth Pty Ltd (First Applicant)
Mrs Wentworth Pty Ltd (Second Applicant)
Council of the City of Sydney (Respondent)
Representation:

Counsel:
C. McEwen SC (Applicant)
P. Clay SC (Respondent)

  Solicitors:
Mills Oakley (Applicant)
Council of the City of Sydney (Respondent)
File Number(s): 2017/120013 & 2017/120129
Publication restriction: No

Judgment

  1. COMMISSIONER: These joined appeals are made pursuant to the provisions of ss 8.7(1) and 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Modification Application D/2015/920/A (file number 2017/120013) to modify the approved Stage 1 building envelope to increase the height by a maximum of 2.3m (the modification application) and Development Application No. D/2016/1463 (file number 2017/120129) for the adaptive reuse of the existing 9 storey former warehouse building, demolition of the existing 3 storey commercial building and construction of a 19 storey mixed use building (the proposal) at 49-53 and 47 Wentworth Avenue, Sydney (the site) by the Council of the City of Sydney (the Council).

  2. The modification application to modify the building envelope approval granted on 23 November 2015 by the Council is necessary because s 4.24(2) of the EPA Act requires that the determination of a further development application in respect of the site cannot be inconsistent with the consent for the concept proposal granted under s 83B (now s 4.22) of the EPA Act.

  3. The appeals were subject to mandatory conciliation on 30 August 2017, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 17 October 2017, pursuant to s 34(4) of the LEC Act.

  4. Leave was granted by the Court on 29 November 2017 for the applicant to rely on an amended proposal.

Issues

  1. The Council’s contentions regarding the appeals, as particularised in the Statement of Facts and Contentions filed 20 December 2017 (exhibit 1), were not pressed in the hearing as a consequence of the agreement of all of the experts on minor amendments to be made to the proposal and agreed conditions of consent. Amended plans reflecting those agreements were filed with the Court on 3 May 2018 (Exhibit C).

The site and its context

  1. The site is on the north-western side of Wentworth Avenue on the block bounded by Hunt Street to the north and Elizabeth Street to the south, with rear lane access to Foy Lane.

  2. The site contains an existing 9 storey former warehouse building at 49-53 Wentworth Avenue and a 3 storey commercial building at 47 Wentworth Avenue.

The proposal

  1. The proposal has been designed by Bates Smart (exhibit 3, tab 1).

  2. The proposal includes the following:

  • Basement: bicycle storage, gym, staff amenities, storage and plant including residential waste room;

  • Ground floor: hotel foyer and reception, dining, bar, café and plant;

  • Levels 1 – 7: hotel rooms;

  • Levels 8 – 10: hotel rooms and residential apartments;

  • Levels 11 – 17: residential apartments;

  • Level 18: residential apartments and outdoor space;

  • Roof top communal open space and lift over-run (RL85.03).

Planning framework

  1. The site is zoned B8 Metropolitan Centre under Sydney Local Environmental Plan 2012 (LEP 2012).

  2. The height of buildings development standard for the site is 60m (Height of Buildings Map Sheet HOB_015 LEP 2012). The relevant objectives for the height of buildings development standard, at cl 4.3 of LEP 2012, 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,

  1. The design excellence clause at 6.21 of LEP 2012, at sub-cl (7), permits a building demonstrating design excellence to exceed the height of buildings development standard by up to 10%, which would permit a height of up to 66m for the site:

(7) A building demonstrating design excellence:

(a) may have a building height that exceeds the maximum height shown for the land on the Height of Buildings Map by an amount, to be determined by the consent authority, of up to 10% of the amount shown on the map, or

(b) is eligible for an amount of additional floor space, to be determined by the consent authority, of up to 10% of:

(i) the amount permitted as a result of the floor space ratio shown for the land on the Floor Space Ratio Map, and

(ii) any accommodation floor space or community infrastructure floor space for which the building is eligible under Division 1 or 2.

  1. The floor space ratio (FSR) for the site is 8:1 (Floor Space Ratio Map Sheet FSR _015 LEP 2012). Pursuant to cl 6.4 of LEP 2012, the proposal is eligible for additional floor space of FSR 6:1, permitting a total FSR of 14:1.

  2. The site does not contain a local heritage item, but is within the vicinity of local heritage items (Heritage Map Sheet HER_015).

  3. The site has rear lane access to Foy Lane which is identified as a central Sydney lane (Lanes Map Sheet LNE_015).

Public submissions

  1. One submission was received by the Council (exhibit C, tab 3) on behalf of a vacation timeshare club which owns a property to the north of the site, regarding their concern that the proposal may overshadow their property. I accept the agreement of the planning and urban design experts that the proposal does not overshadow any property to the north of the site.

Expert evidence

  1. The applicant relied on the expert evidence of Mr Andrew Darroch (planning), Mr Guy Lake (urban design), Mr Brad Vale (heritage), Mr Benjamin White (acoustic) and Mr Stephen Dunlop (ventilation).

  2. The Council relied on the expert evidence of Mr Ben Chamie (planning), Mr Tony Smith (urban design and heritage), Mr Paul Stokes (acoustic) and Mr Che Wall (ventilation).

  3. The joint reports prepared by the experts were tendered and the experts were not required to give oral evidence.

Consideration

  1. I accept the Council’s submission that the following contentions have been resolved by agreed minor changes to the proposal and by agreed conditions of consent; as summarised in the following paragraphs.

Insufficient information

  1. The planning, urban design and heritage experts agreed that the proposal has a FSR of 13.6:1 and that the additional information required by Council, as follows, has been provided or is dealt with by condition:

  • Amended roof plan (attachment 6, exhibit 5);

  • Updated design verification statement (attachment 7, exhibit 5);

  • Condition of consent for a 1:500 scale model to be submitted prior to the issue of a the final occupation certificate (condition 60, Annexure B);

  • Condition of consent requiring verification of the ventilation design (condition 4, Annexure B); and

  • Basix certificate (exhibit C).

Height

  1. The proposal includes a written request to vary the height of buildings development standard pursuant to cl 4.6 of LEP 2012 (exhibit A). The planning, urban design and heritage experts agreed that the breach of the height of buildings development standard is a relatively minor exceedance of 1.99m over the 66m development standard, including the bonus height under cl 6.21(7) of LEP 2012, as the experts agreed that the proposal exhibits design excellence.

  2. In order for there to be power to grant development consent for a development that contravenes a development standard in LEP 2012, I must be satisfied that the proposal is consistent with the objectives of the development standards and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2012); that the applicant's written request has adequately addressed that compliance with the development standards is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2012) and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2012).

  3. The applicant’s written request (exhibit A) justifies the non-compliance of the proposal with the height of buildings development standard of 66m for the site on the following bases:

  • The proposal retains the former warehouse, Tyne House, which is not a heritage item, but is, however, a building of merit that should be retained;

  • The proposal provides for the sympathetic adaptive re-use of the former Tyne House, which makes a positive contribution to the streetscape of Wentworth Avenue;

  • The former Tyne House comprises generous floor to ceiling heights of between 3.6m – 4.77m and as a result, the adaptive reuse of Tyne House results in a greater overall height in order to achieve the FSR development standard for the site;

  • The portion of the building that causes the greatest breach of the development standard is the south-western edge of the lift core which provides access to the rooftop communal open space, which is of benefit to the future residential occupants of the building, particularly those with less solar access on the winter solstice than the recommended minimum; and

  • There are no adverse amenity impacts arising from the breach of the development standard.

  1. I have considered the applicant’s written request under cl 4.6 of LEP 2012 and I am satisfied that the written request justifies that compliance with the height of buildings development standard in cl 4.3 of LEP 2012 is unnecessary in all the circumstances of these appeals. I accept the agreement of the planning, urban design and heritage experts that the proposal is consistent with the objectives of the height of buildings development standard, to ensure the height of development is appropriate to the condition of the site and its context, to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas and to promote the sharing of views.

Ground Floor Plan

  1. I accept the agreement of the planning, urban design and heritage experts (exhibit 5, p 11) that reconfiguration of the ground floor layout (exhibit C, A02[E]) and the provision of a Loading Management Plan (exhibit 2, ff 454-468) resolves the issues raised by the Council regarding the layout of the ground floor including the dual use of the loading area as a café and these requirements are imposed on the consent by condition 86 (Annexure B) including a requirement for an updated Loading Management Plan prior to the issue of a construction certificate.

Amenity – solar access to residential apartments

  1. I accept the agreement of the planning, urban design and heritage experts (exhibit 5, p 15) that in consideration of the dense urban locality of the site it is acceptable that 34 of the 50 residential apartments achieve reasonable solar access on the winter solstice. I accept Mr Clay’s submission, reflecting the Council’s satisfaction in relation to the issues raised regarding solar access to residential apartments, that “the best job that can be done, has been done”.

Amenity – natural ventilation and cross ventilation

  1. I accept the agreement of the ventilation experts (exhibit 3) that adequate natural ventilation will be provided by the vertical plenums shown on the amended plans (exhibit C). I accept the agreement of the acoustic experts that the detailing of vertical plenums will meet suitable internal noise levels for the residential apartments (exhibit 4, par 35). Conditions 4 and 52 (Annexure B) impose the relevant performance requirements, which reflect the agreement of the ventilation experts, on the consent.

Amenity – private open space

  1. As a consequence of the adaptive re-use of Tyne House, 6 of the residential apartments located within the existing fabric of Tyne House do not have a balcony. A rooftop common open space is provided for residents’ use. I accept the agreement of the planning, urban design and heritage experts that this is an acceptable trade-off in order to achieve the desirable outcome of the retention and adaptive reuse of Tyne House.

Unit mix

  1. I accept the Council’s submission that the unit mix of 13 studio apartments, 13 one bedroom apartments, 22 two bedroom apartments and 2 three bedroom apartments is an acceptable range of residential accommodation in all of the circumstances of this application.

Conclusion

  1. I accept the agreement of the planning, urban design and heritage experts and the Council’s submission that the resolution of the issues raised by the Council and the provision of a BASIX certificate satisfies the contention regarding design excellence and that the Council is satisfied that the proposal exhibits design excellence

  2. I am satisfied that consent can be granted to the modification application to modify the concept development consent and to the development application for the adaptive reuse of the existing warehouse building known as Tyne House, the demolition of the small commercial building to the north of Tyne House and the construction of a 19 storey mixed use building.

Orders

  1. The orders of the Court are:

  1. The appeal is upheld.

  2. Modification Application D/2015/920/A to modify the concept development consent and Development Application No. D/2016/1463 for the adaptive reuse of the existing 9 storey former warehouse building, demolition of the existing 3 storey commercial building and construction of a 19 storey mixed use building at 49-53 and 47 Wentworth Avenue, Sydney, are approved, subject to the conditions of consent at Annexures A and B.

  3. The exhibits, other than exhibits 1 and C, are returned.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (85.7 KB, pdf)

Annexure B (276 KB, pdf)

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Decision last updated: 05 June 2018

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