Great Wall Property Group v North Sydney Council

[2005] NSWLEC 472

Land and Environment Court

of New South Wales

CITATION:

Great Wall Property Group v North Sydney Council [2005] NSWLEC 472
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

Applicant:
Great Wall Property Group Pty Ltd

Repondent:
North Sydney Council

FILE NUMBER(S):

10272 of 2005

CORAM:

Roseth SC

KEY ISSUES:

Development Application - Development Control Plan :- impact on development potential of adjacent sites

DATES OF HEARING:

18/08/2005 and 19/08/2005

 
DATE OF JUDGMENT: 

08/31/2005

LEGAL REPRESENTATIVES:

Applicant:
Mr N Hemmings QC instructed by Mr H Kahagalle of Allens Arthur Robinson

Respondent:
Ms H Irish, barrister instructed by Ms L Leese of Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT

OF NEW SOUTH WALES

Roseth SC

31 August 2005

10272 of 2005 Great Wall Property Group Pty Ltd v North Sydney Council

1

Senior Commissioner : This is an appeal against the refusal by North Sydney Council (the council) of a development application to demolish the existing buildings and erect a mixed-use development consisting of a 21-level building containing 3700m ² of commercial floor space and 80 apartments with three levels of basement parking for 61 cars, on lots 1A, 2A, 4A and 5A DP 244474, and lot 1 DP 953976, known as Nos 3, 5-7 and 9-11 Ward Street, North Sydney.

The site

2

The site is on the eastern side of Ward Street, which, with its 9m-width, is more like a laneway than a street. On the western side of the street is a property owned by the council and occupied by a commercial carpark currently operated by Wilson Parking (the council carpark site). To the north the site adjoins the northern section of the carpark and the south end of Harnett Street, which is a cul-de-sac. To the south the site adjoins an electricity substation. To the east the site adjoins four allotments: a multi-storey office building at 76 Berry Street (the People Telecom building), and Nos 136, 138-140, and 142 Walker Street. Three two-storey apartment buildings now stand on the latter three sites.

3

The applicant proposes to demolish the existing buildings and erect a mixed-use development consisting of a 21-level building containing 3700m ² of commercial floor space over five levels, 80 apartments, and three levels of basement parking for 61 cars. The aspects of the proposal that were most in contention were its setbacks from Ward Street and the eastern boundary common with 136-140 and 142 Walker Street, and its location along the north-south axis of the site.

4

The applicant lodged the development application in June 2004. Following notification, the council received 21 submissions. Amended plans were lodged in July and October 2004, this time attracting three submissions. In July 2004 the council’s Urban Design Advisory Panel considered the proposal. In relation to the setback from Ward Street, the Panel noted that

1. …

(Note: based on the drawings before the Court, the 1.5m setback appears incorrect.)

The Panel supported the application, though with the proviso that the council is satisfied that “the development of the council-owned site to the west would not be unnecessarily compromised ”. The Panel did not consider the setback to the eastern boundary or the impact on the development potential of 136-142 Walker Street.

5
In October 2004 the council received a planning report from its planning staff recommending refusal. At its meeting on 6 December 2004, the council resolved to defer the matter pending a review by an independent consultant. JBA Urban Planning Consultants reviewed the proposal and recommended approval. The council did not accept the recommendation and refused the application in March 2005. The applicant filed the appeal in March 2005.
6
The council has received an application for a 35-storey building on the site adjoining to the east, No 136-140 Walker Street. In July 2005 the council’s Urban Design Advisory Panel commented negatively on the proposal. The council has not yet determined the application.

7

(the LEP) zones the site Mixed Use. Development Control Plan 2002 (the DCP) applies including the area character statement for the Central Business District. State Environmental Planning Policy 65 – Design Quality of Residential Flat Development (SEPP 65) and its attached Residential Flat Design Code (RFDC) apply.

8

The council’s Statement of Issues contained four issues of which it pressed three, namely:

• Does the proposal constrain the development potential of the council carpark site and Nos 136-140 Walker Street?
• Should the tower element
• • set back by 2m from Ward Street;
  • move 7m towards the north?
• Should there be connection to the open space to the north of People Telecom building?

9

In the absence of Court-appointed experts, the council relied on the evidence of Mr G Mossemenear, the manager of development control, and Ms G Morrish, an architect and urban designer. The applicant relied on the evidence of Ms M Higgins, a town planner, and Mr M Harrison, an architect and urban designer. The four experts gave concurrent evidence.

10

During a view of the site the Court heard the evidence of eight objectors. Mr D Sneddon, a consultant planner who represented Energy Australia, said that his client intended to stay at its present location and perhaps upgrade the substation in future. The main concern was that noise and soot emanating from the substation might annoy future residents of the proposal. I note that the proposal has a blank wall towards the substation site.

11

Mr John Derrick, the property manager of No 76 Berry Street, said that he was concerned that future residents might find the illuminated “PEOPLE Telecom” sign on his building disturbing and might object to future changes of the sign. In addition, there was a danger that the proposed apartments would overlook the gardens at ground level and the rooftop of the building.

12

Mr P Witts, the State manager for Wilson Parking, said that the proposal would increase traffic in Ward Street with negative results for the flow into and out of the parking station.

13

Ms Barbara Noden, who lives at 45 McLaren Street, was concerned about the noise from the proposed development disturbing the south-facing bedrooms in her building. She considered the proposal to be too big and unsuitable for the locality. Mr G Payne, of the same address, supported all Ms Noden’s concerns. He added that the proposal did not provide sufficient parking spaces. Mr P Diamond, also of the same address, added that the proposal would create a canyon effect and that it contained too many people.

14

Mr T Byrnes, a consultant planner representing Castle Constructions, the owner of 136-140 Walker Street, said that his client objected to the proposal coming within 3.5m of the common boundary, as this would prejudice the development potential of his site. Mr Byrnes said that his client had lodged an application for a 35-storey apartment building and that the shadows cast by that building outside the composite shadow (see below) may be described as minor. He challenged the assumption, advanced by the applicant in these proceedings, that 136-140 Walker Street could accommodate only a five-storey building.

15

The council tendered a letter of objection from Mr V Lahoud, a director of Castle Constructions. The letter suggests that the composite shadow diagram on which the applicant in these proceedings based its conclusion that 136-140 can achieve only a five-storey building may have been a version before its amendment in early 2003. Mr Lahoud goes on to say:

There is no proper basis therefore for the claim made by the developer of the proposal currently before the Court that the development on 136-140 Walker Street is restricted to RL 77 by reason of compliance with the shadow controls referred to in the LEP. The Ward Street development should therefore respect the equitable principle of setting back from the boundary half the distance judged by this honourable Court to be appropriate for the separation between two high-rise buildings.

16

Mr R Brennan, who represented the owners of 142 Walker Street (to the north of 136-140), was concerned with the same issue as Mr Byrnes and Mr Lahoud, namely the impact on development potential. Mr Brennan agreed, however, that No 142 could be developed only on the basis of a successful objection under SEPP 1, since its area was short of the 1,000m ² required by cl 28D(2)(e) of the LEP.

17

The four experts in the case agreed that the objectors’ concerns were largely reflected in the council’s issues and that in dealing with those issues the Court will address the objections. The four experts in the case agreed that the objectors’ concerns were largely reflected in the council’s issues and that in dealing with those issues the Court will address the objections.

Impact on the development potential of the council carpark

18

The council carpark site is on the western side of Ward Street, extending to a section to the north. If the carpark site is redeveloped, the council intends to convert the northern section into a reserve and restrict buildings to the western section. That section is 62m long and 43m deep. To the west it adjoins two high-rise office buildings.

19

The Character Area Statement for the Central Business District under the DCP requires a weighted average setback of 4m for towers above a two-to-three-storey podium in Ward Street. At the commencement of the hearing Ms Higgins said that the weighted average of the proposal’s setback from Ward Street was 1.3m. Because the drawings tendered did not specify setback distances from Ward Street, it was not possible to verify this. At my request the applicant supplied the dimensions of the setback. They were 0.983m at the northern end and 0.830m at the southern end. I note that about 9m of the building’s length is on the boundary and there are two indentations of 2m, each of about 2.5m length. I conclude from the above that the weighted average setback of the building is under 1m (and not 1.3m). Louvres within the setback cover about 80% of the Ward Street façade. The effective setback is therefore reduced by the width of the louvres, which scales 400mm on the drawings. The effective setback therefore is about 0.5m.

20

In Mr Mossemenear’s view, the 4m requirement of the DCP should be given considerable weight. He said that the objective of the setback is twofold: first, to provide for adequate building separation between residential buildings and, second, to achieve a reasonable streetscape in Ward Street. He pointed out that the proposed 64m high building is virtually on the street alignment. Given the 9m width of Ward Street, the proposed building would unreasonably dominate the street.

21

Mr Mossemenear pointed out that a 4m setback on each side, together with 9m width of Ward Street, would provide a separation of 17m between buildings. This was only slightly under 18m, which he considered acceptable given the privacy louvres covering the larger part of the tower’s west-facing façade. Mr Mossemenear then went on to justify the fact that the Statement of Issues required the applicant to set back by only 2m, not 4m from Ward Street. The reason was that the subject site had a depth of only 21m. A 4m setback Mr Mossemenear pointed out that a 4m setback on each side, together with 9m width of Ward Street, would provide a separation of 17m between buildings. This was only slightly under 18m, which he considered acceptable given the privacy louvres covering the larger part of the tower’s west-facing façade. Mr Mossemenear then went on to justify the fact that the Statement of Issues required the applicant to set back by only 2m, not 4m from Ward Street. The reason was that the subject site had a depth of only 21m. A 4m setback, combined with a larger setback to the east, might make it impossible to design a viable tower.

22

Ms Morrish pointed out that, the required separation between habitable rooms being 24m, the tower should set back 7.5m from the street alignment. Ms Higgins suggested than an acceptable separation between high-rise buildings would be 12-13m. I understand that she based her opinion on the existence of louvres on the proposal’s west-facing elevation. To achieve 13m separation, a future building on the carpark site would have to set back 4m. She justified the unequal setbacks between the carpark site and the subject site on the fact that the former had a greater depth and could afford to set back further.

23

Mr Harrison agreed with Mr Mossemenear that an acceptable separation between a future building on the carpark site and the subject proposal was 18m. He agreed that this would require a building on the carpark site to set back about 8m from Ward Street. Like Ms Higgins, he justified this by the fact that the carpark site was larger.

24

The experts before the Court suggested three different dimensions as being appropriate for separating the habitable rooms in two high-rise residential buildings. The distance that Ms Morrish considered appropriate was twice that suggested by Ms Higgins. In my opinion, Ms Morrish’s preference for a 24m separation is achievable only if the subject site were amalgamated with 136-142 Walker Street. Ms Higgins’ preference for 12m would produce unacceptable living conditions, notwithstanding all the privacy devices one may hang on a building. I accept Mr Mossemenear and Mr Harrison’s suggestion that an 18m separation would be acceptable. Given that the proposal now comes within 500mm of the street, this would require a future building on the carpark site to be set back 8.5m. If it were set back only 4m, the separation would be only 13.5m. It is therefore hard to escape the conclusion that the subject proposal severely constrains the development potential of the council carpark site.

25

It is a well-established principle of planning that a development should not rely on neighbouring sites for its amenity, nor should it require other sites to forgo development potential. Where a separation distance of 10m is desired, each development should provide 5m. The fact that it is easier to provide the setback on one site than the other, is irrelevant.

26

The proposal directly contravenes this principle. It would require that a residential building on the council carpark site be set back 8.5m, or twice the distance required by the DCP and 17-times the setback of this proposal. There is every reason therefore to respect the 4m setback required by the DCP. I note, however, that, in its Statement of issues, the council identified only a requirement for a 2m setback from Ward Street. Mr Mossemenear said that he had indicated to the applicant in earlier negotiations that he would accept a 2m setback. In view of this the Court would also accept a 2m setback, provided it was measured from the de-facto face of the building, which is the edge of the louvres.

27

I note that the independent assessment by JBA Urban Planning Consultants had considered the proposal’s setback from Ward Street acceptable (though it appears that the author of the report thought that the setback was greater than it is). The conclusion that the setback did not prejudice the development potential of the council carpark site was based on a building envelope study undertaken by Architectus, a consultant to the applicant in these proceedings. It is the same building envelope study that is before the Court. The study shows a high-rise building on the council carpark site 24m from the subject proposal and therefore about 14m from the Ward Street alignment. The JBA report did not prepare its own independent building envelope study. It accepted without comment that development on one side of the street should provide all of the required separation between buildings. For these reasons the JBA Urban Planning Consultants report is of no assistance to the Court.

28

In note that the proposal is a 64m high building virtually on the alignment of a 9m wide street. Mr Harrison has used various angles of perception to suggest than passers-by will not see that part of the building, which is above an angle of 45 ^o . I note that the angle of perception is shown from a point directly opposite the site, and not, for example, from the corner of Ward and Berry Streets or the southern side of Berry Street looking north. I note also that the material before the Court did not include a perspective drawing or photomontage indicating how the proposed building would appear from those vantage points.

Impact on development potential of 136-142 Walker Street

29

While there were separate objections for 136-140, and for 142 Walker Street, the applicant has considered the three sites in an amalgamated form. This is a sensible approach, since No 142 by itself is significantly short of the minimum allotment size in the LEP.

30

The residential section of the proposal is set back 3.5m from the common boundary with 136-142 Walker Street. The applicant has justified this on the basis that the development potential of No 136-142 is five storeys, and the subject proposal’s first five storeys are commercial. The applicant’s argument is based on cl 28D of the LEP. Because of the importance of that clause in these proceedings, I shall quote subclauses 28D(2), (3) and (4) in full.

(2) Building heights and massing controls

Consent must not be granted to the erection of a building within the North Sydney Centre, unless:

(a) the height of the building will not exceed RL 195 AHD, and
(b) there is no net increase in overshadowing of any land between the hours of 9am and 3pm, 21 June outside the composite shadow area, as shown on the map marked "North Sydney Local Environmental Plan 2001 (Amendment No 9)- North Sydney Centre" (except land that is in the road or Railways Zone), and
(c) there is no net increase in overshadowing, between lOam and 2pm, at any time of the year, of any land that is within the North Sydney Centre and is within the public open space zone or within a special area as shown on Sheet 5 of the map marked "North Sydney Local Environmental Plan 2001 (Amendment No 9)- North Sydney Centre", and
(d) there will be no increase in overshadowing that would reduce the amenity of any dwelling that is outside the North Sydney Centre and falls within the composite shadow area referred to in paragraph (b), and
(e) the site area is not less than 1,000 square metres.

(3) State Environmental Planning Policy No l-Development Standards does not apply to a requirement made by subclause (2) (a), (b) or (c) (including a requirement varied under subclause (4)).

(4) Minor variation of overshadowing controls
The consent authority may make a determination to vary, to a minor extent only, the operation of subclauses (2) (b) or (c), or both, in respect of a particular development application, but only if:
(a) it is satisfied that the variation is justified due to the merits of the development application and the public benefit to be gained, and
(b) it is satisfied that any increase in overshadowing will not reduce the amenity of any land, and
(c) in relation to a variation of the operation of subclause (2)(b), the variation will result in not more than 2 hours net increase in overshadowing of land referred to in that paragraph between the hours of 9am and 3pm, 21 June, and
(d) in relation to variation of the operation of subclause (2)(c), the variation will result in not more than 15 minutes net increase in overshadowing of land referred to in that paragraph between the hours of 10am and 12 noon, and no net increase between the hours of 12 noon and 2pm, on any day.
31
The applicant’s evidence includes two building envelopes (prepared at different times) for No 136-142 that meets cl 28D(b) in that it does not cast a shadow outside the composite shadow indicated on North Sydney Local Environmental Plan 2001 (Amendment No 9)-North Sydney Centre referred to in the subclause. The building envelopes are different. None of the experts could explain why. Ms Higgins agreed that the envelopes did not take into account cl 28D(4).

32
Mr Mossemenear said that the proposal would constrain No 136-142. To provide a separation of 13m (a distance that is already a compromise on the desirable 18m), a residential building on No 136-142 would require a setback of 10m. This would be an unreasonable imposition on No 136-142, a site that is already heavily constrained by the operation of cl 28D. Mr Mossemenear also told the Court that cl 28D has been applied only to one development application so far, and in that case a shadow outside the composite shadow was considered to comply with cl 28D(4). Mr Mossemenear did not accept that No 136-142 had a development potential of only five storeys. He did not think that the current application for No 136-140 for a 35-storey building was appropriate, but a building between five and 35 storeys might be. Mr Harrison and Ms Higgins maintained that No 136-142 could not be developed beyond a five-storey commercial building without offending cl 28D.
33
The following facts emerge from the evidence:
·

The two building envelopes before the Court indicating the permissible development on No 136-142 are different. Either one is wrong or both are wrong.

·

Whatever development potential No 136-142 does possess, that potential is mainly near the western boundary, ie the common boundary with the subject site. Therefore a development on the subject site close to the common boundary is particularly disadvantageous for No 136-142.

·

The applicant’s investigation of the development potential of No 136-142 has not extended to looking at the extent and location of shadows cast by building forms outside the building envelope, and whether the shadows might be minor.

· On the one occasion that the council applied the composite shadow control, it varied the control under cl 28D(4).

34
In order to accept the applicant’s evidence, I would have to conclude that the subject site has a potential for a 21-storey building, while a neighbouring site under identical zoning and only 3.5m distant has a potential for a five-storey building. Moreover, I would need to come to this conclusion in the face of Mossemenear’s evidence that, while a 35-storey tower currently before the council is unlikely to be approved, a proposal between 5 and 35 storeys may be acceptable. Moreover, I would need to come to this conclusion on the basis of evidence only from the applicant, whose interest is to present the development potential of No 136-142 as small as possible. Finally I would need to reach the conclusion in the knowledge that the impact on No 236-142 would be permanent.
35
The evidence before me does not persuade me to accept the applicant’s case without further exploration of the development potential of 136-142 Walker Street.

36

The reason that the council suggests moving the tower by 7m (or some distance up to 7m) in a northerly direction is that it would decrease the morning shadow over the forecourt of 79-81 Berry Street. Mr Mossemenear said that the council placed great weight on retaining as much sunlight as possible over the forecourt. Ms Morrish agreed. Mr Harrison and Ms Higgins argued that moving the tower towards the north would have undesirable results including casting a shadow outside the composite shadow.

37

I agree with the council’s experts that it is desirable to retain as much sunlight as possible over the forecourt. I note, however, that the forecourt is not a special area I agree with the council’s experts that it is desirable to retain as much sunlight as possible over the forecourt. I note, however, that the forecourt is not a special area shown on Sheet 5 of the map marked "North Sydney Local Environmental Plan 2001 (Amendment No 9)- North Sydney Centre". Amendment 9 of the LEP is specially directed to reducing overshadowing in the North Sydney Centre. The fact that the council has left the forecourt out of the listed special areas suggests that it does not place major weight on its protection. An applicant would have no way of knowing that the protection of sunlight over the forecourt is of higher priority than other urban design objectives. In my opinion, the council’s case for moving the tower by 7m to the north is not justified.

38

The People Telecom building has a pleasant courtyard to its north. A condition of development consent for the building requires public access; however, in practice there is no public access and the space appears as the private open space of a restaurant that operates on the building’s ground floor. In Mr Mossemenear and Ms Morrish’s opinion, the proposal should connect, practically and visually, to the open space of the People Telecom building. I do not think that a practical connection is feasible. A visual connection may be pleasant, but it is not essential.

39

Like the protection of the Berry Street forecourt, this is another matter that should be included in the DCP, so that applicants can be aware of it before they design and submit an application. In the circumstances, the lack of connection to the open space is not a reason for refusal

40

At the end of the hearing the applicant’s advocate, Mr N Hemmings, submitted that the Court should either approve the application or, in the alternative, should indicate its findings without making orders. I respond to this submission. In my opinion, there are two issues of substance in this case, namely

·

the setback to Ward Street, and

· the setback from the eastern boundary.

41
Regarding the setback to Ward Street, I accept the council’s case that the tower element should set back further from the street alignment. The Character Area Statement for the Central Business District attached to the DCP requires a 4m setback. While I can see no planning reason to depart from this requirement, I accept that the council Regarding the setback to Ward Street, I accept the council’s case that the tower element should set back further from the street alignment. The Character Area Statement for the Central Business District attached to the DCP requires a 4m setback. While I can see no planning reason to depart from this requirement, I accept that the council’s Statement of Issues requires only a 2m setback and that Mr Mossemenear would find a 2m setback acceptable. The setback should be to the true face of the building, which is the edge of the louvres.
42
On the basis of the evidence relating to the development potential of the eastern neighbour 136-142 Walker Street, I would find it difficult not to accept Mr Lahoud’s request that the Court should respect the equitable principle of setting back from the boundary half the distance judged appropriate for the separation between two high-rise buildings. Mr Mossemenear thought that the separation should be 13m and the setback on the subject site therefore 6.5m.
43
I note, however, that a total setback from the eastern and western boundary of 8.5m would leave only 13m for the width of a tower. This would be a heavy constraint on developing the subject site. I note also that the information on the development potential of 136-142 Walker Street was inadequate. It was based on building envelopes that appeared incorrect and on an interpretation of cl 28D(4) of the LEP that least favoured the owners of No 136-142. A decision in these proceedings could have serious consequences for the development of No 136-142.
44
I note that Mr Mossemenear thought that No 136-142 had a higher potential than a five-storey building, although he did not think that it was as high as 35 storeys. The applicant’s experts did not agree. The matter was not fully considered or debated. There was no one present representing the interests of No 136-142. In my opinion, the question needs to be further explored. In particular, Mr Mossemenear should indicate just what height of development on No 136-142 he would find acceptable. A further day’s hearing would be required to give the issue justice.

The Court directs the parties to approach the Registrar with a timetable for progressing this matter,

·
by eCourt before 9 September, if they reach agreement on the timetable;
· at the call-over on 9 September 2005, if they do not reach agreement.

- 2 -

02/09/2005 - to make the judgment available to Commissioner Moore - Paragraph(s) no amendment