Grosvenor Australia Property Pty Ltd v Sydney CC and Rail Corporation NSW

Case •

[2007] NSWLEC 2

•

18 January 2007

No judgment structure available for this case.

Land and Environment Court


of New South Wales


CITATION: Grosvenor Australia Property Pty Ltd v Sydney CC and Rail Corporation NSW [2007] NSWLEC 2
This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:

APPLICANT
Grosvenor Australia Properties Pty Ltd

1ST RESPONDENT
Sydney City Council

2ND RESPONDENT
Rail Corporation NSW
FILE NUMBER(S): 11462 of 2005
CORAM: Hoffman C
KEY ISSUES: Development Application :- Two residential towers envelopes, acceptability of existing carpark as a podium, urban design/heritage impacts on adjoining heritage items and adjoining buildings, streetscape, active street front, future underground railway, existing use rights.
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Heritage Act 1977
State Environmental Planning Policy 11 -Traffic Generating Developments
State Environmental Planning Policy 55 - Remediation of Land
State Environmental Planning Policy 63 - Major Transport Projects
State Environmental Planning Policy 65 - Design Quality of Residential Flat Buildings
Central Sydney Local Environmental Plan 1996
Central Sydney Heritage Local Environmental Plan 2000
Central Sydney Development Control Plan 1996
City of Sydney Contaminated Land Development Control Plan 2004
Central Sydney Local Environmental Plan 2005
DATES OF HEARING: 14/11/2006, 15/11/2006 and 16/11/2006
 
DATE OF JUDGMENT: 
18 January 2007
LEGAL REPRESENTATIVES:

APPLICANT
Mr N. Hemmings, QC
instructed by Mr J. Sturgeon, solicitor
of Allens Arthur Robinson

1ST RESPONDENT
Mr C. Leggatt, SC
Instructed by Ms P. Adraskelas, solicitor
of Maddocks Lawyers

2ND RESPONDENT
Mr P. Larkin, barrister
Instructed by Ms R. Daniel, solicitor
of Clayton Utz


JUDGMENT:

      THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

      Commissioner Hoffman

      18 January 2007

      11462 of 2005 Grosvenor Australia Properties Pty Ltd v Sydney City Council and Rail Corporation NSW

      JUDGMENT

1 This is a Class 1 Appeal No.11462 of 2005 between Grosvenor Australia Properties Pty Ltd and the City of Sydney as 1st Respondent and Railcorp as 2nd Respondent in regard to a proposal to put two residential towers above an existing multi-storey carpark at 521-527 Kent St in the CBD. The site runs between Kent St and Sussex St with drive entries and exits to both streets.

2 The appeal is in regard to the Stage 1 building envelope for the two residential towers above the existing public car park, which is to be refurbished, altered, and retained. The proposed uses of the carpark are retail/commercial and entry lobbies for the towers on the ground and first floor street frontages, retention of the majority of the long and short stay public car park, with some of the existing parking re-allocated for tenant parking and the residential units.

3 For major new buildings in the CBD, the council has a 2 Stage process for dealing with applications. Stage 1 is the establishment of design parameters for a more detailed application, by the assessment of site analysis, constraints/opportunities, policies and controls, statutes and planning objectives and through that process, including public exhibition and consideration of objections, arrive at a building envelope approval.

4 Stage 2 is the more detailed application that may involve a design competition amongst selected consultants, to obtain the best new building for the site, its neighbours and the city.


      The site and the locality.

5 The site is known as 521-527 Kent and 306-318 Sussex Streets, Sydney. It has an eastern frontage to Kent Street, a western frontage to Sussex Street and is 2,680 square metres in area.

6 The site contains an above ground short and long stay public car park with 906 spaces, known as the Cinema Centre Car Park, because of it's proximity to the cinemas in George Street.

7 The Kent Street frontage is 7 storeys high and the Sussex Street frontage is 9 storeys high. The top or tenth floor is open to the sky and is used as car parking. It is hidden behind the front parapet.


8 The building is an open slab construction of dark brown face brickwork with white painted concrete spandrels and a central solid brick stairwell. Each street frontage contains 2 vehicular driveways.

9 The site is surrounded by a mix of residential and commercial buildings.


      To the North

10 The building to the north is known as Maestri Towers, fronting Bathurst, Kent and Sussex. Streets. It is a residential development built around a U-shaped courtyard on its southern boundary. The courtyard has dimensions of approximately 17.5 metres (north/south) and 19 metres (east/west)). This tower is 80 metres high (between RL 96.96 and RL 90.20) with a 25 metre (RL 35.20) podium to Sussex Street and a 24 metre (RL 40.95) podium to Kent Street.


11 The building on the corner of Bathurst and Kent Streets is called the Medina Apartments. It is also 80 metres high (RL 95) and contains serviced apartments. The Maestri building wraps around the back of the Medina.

12 The Medina Apartments and Maestri Towers have an FSR of approximately 15.5:1.

13 A maximum height limit of 80 metres applies to the Maestri Towers and Medina Apartments to the north.


      To the South

14 The site is adjoined to the south by two heritage listed buildings, being the Sussex Street Public School (also known as the Flying Angels Seafarers Centre) on Sussex Street and the Judges' House and gardens on Kent Street. The Judges House is listed on the NSW State Heritage Register, pursuant to the Heritage Act, 1997, as well as having a local heritage listing.

15 These buildings are approximately 16 metres high (RL 26) and have a generous curtilage which contributes to their setting.

16 In between these heritage buildings is the former Suntory Restaurant building, which is now occupied by Tetsuya's Restaurant.

17 Further to the south is a residential building at 533 Kent Street, known as the Meriton.

18 On Sussex Street is another residential building, known as the Windsor Plaza which has an FSR of 14.5:1. Both of these buildings are approximately 45 metres high (RL 59.1 and RL 57.7, respectively). Beyond these to the south at 348-362 Sussex Street is a 27 storey residential building. An 80 metre height limit applies to these sites.

      To the West

19 Buildings to the west of the site in Sussex Street are generally lower in height as there is a diminishing scale to the west of George Street towards Darling Harbour. A height limit of 50 metres applies to these sites. The existing buildings opposite the site range from several stories to between 45, 50 and 59 metres.


      To the East

20 To the east of the site is the HOYTS Cinema complex and the Lumiere development, which is under construction. The Lumiere has an FSR of 16.9:1 and includes a 151 metre (RL 172) building on George Street and a 114 metre (RL 130) serviced apartment building on Kent Street called Fraser Apartments.

21 A height limit of 150 metres applies to sites on the eastern side of Kent Street.

      The proposal in detail.
      (i) Retention of the existing 10 storey public car-park to serve as the podium of the new building;
      (ii) Refurbishment of the external facades of the public car park;
      (iii) Enclosure of the tenth level of the car park;
      (iv) Construction of a new transfer floor above the car park, set back a minimum of 2 metres from both street frontages. This floor would provide structural support for the two towers and accommodate services. The roof of the transfer floor would contain a garden, terrace and pool;
          Note: The setbacks are increased in the plans in this appeal.
      (v) A reduction in the number of public car parking spaces from 900 now to 700 public car parking spaces for use as long and short stay parking (levels 2B to 10B), with 100 spaces on Levels 1A, 1B and 2A to be converted to residential and tenant parking. The proposal will result in the total number of spaces being 800.
      (vi) Introduction of active uses at the ground floor level including retail shops and residential entrance lobbies on Kent and Sussex Streets;
      (vii) The retention of two public car parking vehicular crossings (one with an entry and exit and one narrowed to only one lane) in Kent Street and the retention of one shared tenant and public car parking vehicular crossing in Sussex Street, resulting in a net loss of one vehicular crossing;
      (viii) A Stage 1 building envelope for two residential towers above the building podium, (referred to as the Kent Street tower and the Sussex Street tower). The building podium height (or street frontage height) is 22.4 metres (RL 38.85) in Kent Street and 28.8 metres (RL 38.85) in Sussex Street;
      (ix) The Kent Street tower will be 18 storeys above the podium proposing a maximum height of. 80 metres (RL 96.47) and the Sussex Street tower will be 16 storeys above the podium proposing a maximum height of 73.5 metres (RL 90.08);
      (x) The Kent Street tower will be setback 3 to 15 metres from Kent Street and the Sussex Street tower will be setback 5.6m from Sussex Street;
      (xi) The two towers are proposed to be built to the northern boundary to align with the blank southern facades of the Maestri Towers (which are also built to the boundary); and
      (xii) A minimum setback of 6 metres is proposed from the southern boundary to both towers at a corner point of each increasing as the tower envelopes splay and widen to the north.

22 As the proposal is a Stage 1 scheme the layout and number of residential units, tenant car parking spaces and the detailed design of the podium and tower facades is indicative only and would be the subject of a design competition and future detailed Stage 2 development application.

23 The total proposed floor space ratio (FSR) is 12.8:1. The total proposed floor space area (FSA) is 34,304sgm, comprising 12,464sqm (or 4.65:1) of residential floor space and 21,840sgm (or 8.15:1) of car parking. The car park is floor space intensive because it has a low floor to ceiling height of 2.55 metres.

24 The site benefits from `existing use' rights. The development application was accompanied by an objection, pursuant to State Environmental Planning Policy No.1 (SEPP 1) to the floor space ratio controls. The Local Environmental Plan 1996 would normally permit a maximum FSR of 10.36:1 (or an FSA of 27,764.8sqm) for a mixed use development containing the proportion of uses proposed. The proposal is 2.44:1 or 6,539sqm over the maximum permitted floor space ratio.


      Tower Envelopes above Podium
      Cross Section

      The Issues

          ISSUE 1 - Inappropriate Land use
          1.1 The proposed development, by virtue of retaining and refurbishing the existing car park building, will entrench a particular use which is not desirable in the future long-term planning of the City, with an inability to convert that structure/use to a different, more suitable, use in the future, because of the constraints of the existing building.
          1.2 This is contrary to Clause 5 (the objects) of the Environmental Planning and Assessment Act, 1979 in that the proposed development will not promote the social welfare of the community, not promote a better environment, not result in the orderly and economic use and development of land and will not encourage ecologically sustainable development.
          1.3 The inability to reuse the new podium (the retained car park) for a different, more suitable use in the future_ is not in the public interest, having regard to Clause 79C (1) (e).
          1.4 This is unacceptable with regard to Clause 79C (1) (b) as the entrenchment of the use will have a long-term adverse impact on the built environment.
          1.5 Although the provisions of the Central Sydney LEP and DCP 1996 do not apply to 'existing use rights' in so far as they derogate from those rights, they do apply to the area and surrounding sites and therefore are relevant to context (at the time the appeal was lodged). Provisions of the LEP and DCP are therefore referred to in this Statement in that regard.
          1.6 The proposal is contrary to Clauses 11(e), 12(b), 12(f), 12(i), 18(c), 18(l), 47 and 48A(6) of the Central Sydney LEP 1996.
          1.7 The new Sydney LEP 2005 now also applies to land surrounding the site and is therefore also referred to for context. The proposal is contrary to Clauses 11, 12, 36, 6.4 and 66 of the LEP 2005.
          1.8 A more suitable outcome would be to design a wholly new podium (rather than re-use the existing building) and with adequate floor to ceiling heights and better active frontages so as to allow future change of use if desired.

          ISSUE 2 Inappropriate Built Form
          2.1 The proposed scale, bulk, height and footprint of the development is inappropriate in context and will have an adverse impact on the built environment and streetscape.
          2.2 This is unacceptable with regard to Clause 79C (1) (b) and the objects of the Act.
          2.3 The proposal is also contrary to Clauses 20(1)(b) and 32(1A) of the LEP 1996 and Clauses 2.3 and 2.7.1 of the DCP 1996.
          2.4 A more suitable outcome would be to have the podium no higher than the adjoining podiums on both Sussex and Kent Streets. The Sussex Street tower should be lower in height than the Kent Street tower, to respond to the existing diminishing scale to the west. The front setbacks of the towers should be increased to 8 metres from both street frontages.

          ISSUE 3 - Floor Space Ratio
          3.1 The proposed development is excessive in terms of floor space area which manifests itself in the excessive bulk and size of the development. The LEP 1996 and LEP 2005 would normally allow a mixed use building, of the proportion of uses proposed, to have a floor space ratio (FSR) of 10.36:1. The proposed development will have a FSR of 12.8:1, which is 2.44:1 or 6,539 square metres over that permitted by the LEP's. This represents a 19% non-compliance with the maximum FSR provisions.
          3.2 This is unacceptable with regard to Clause 79C (1) (b) of the Act.
          3.3 The proposal is also contrary to Clauses 35(1 B)(c), 35(1C) and 45 of the Central Sydney LEP 1996.
          3.4 A more suitable outcome would be to construct a wholly new podium with a 2.7 metre floor to ceiling height rather than re-use the existing car park building, which is floor space intensive because of its low floor to ceiling heights. This would have the overall effect of reducing the total floor space area of the development.

          ISSUE 4 - Heritage Impact
          4.1 The proposed scale, bulk and height of the development will exacerbate the awkward scale relationship that exists between the site and the adjoining heritage items. The proposal will overwhelm and thus have an adverse impact on the significance, character and setting of the adjoining heritage buildings.
          4.2 The bulk and scale of the proposal, by virtue of overshadowing, is likely to have an adverse impact on the longevity and sustainability of the garden surrounding the two adjoining heritage items and on the amount of sunlight the site receives. The garden is particularly important as it provides a curtilege to the heritage items in an otherwise built up urban environment.
          4.3 This is unacceptable with regard to Clause 79C (1) (b) and the objects of the Environmental Planning and Assessment Act, 1979.
          4.4 This is also contrary to Clause 13 of the Central Sydney Heritage LEP 2000.
          4.5 A more suitable outcome would be to construct a wholly new podium that is designed to better respond to the scale difference between the site and the adjoining heritage items.

          ISSUE 5 - Surrounding Residential Amenity
          5.1 The proposal will have an adverse impact on surrounding residential amenity, by virtue of the excessive footprint of the Sussex Street tower, the height of the podium and the height of the two towers.
          5.2 This is unacceptable with regard to Clause 79C (1) (b) and the objects and of the Act.
          5.3 A more suitable outcome would be to reduce the footprint of the Sussex Street tower, by reducing its eastern edge to align with the edge of the adjoining Maestri building. The height of the Sussex Street tower should also be reduced to be no higher than the southern edge of the adjoining Maestri building, which steps down by two floors to the south.

          ISSUE 6 - Internal Future Residential Amenity
          6.1 The footprint of the two towers does not provide adequate separation distances between the two buildings. At one point the separation distance is only 10.5 metres and should be at least 24 metres to achieve a suitable level of separation, openness and privacy.
          6.2 This is unacceptable with regard to Clause 79C (1) (b) and the objects and of the Act.
          6.3 This is also contrary to Clause 2.3.16 of the Central Sydney DCP 1996.
          6.4 A more suitable outcome would be to redesign the two towers to provide further separation.

          ISSUE 7 - Inactive Street Frontage
          7.1 The re-used public car park as the podium does not include adequate and meaningful active street frontages and alienates pedestrian activity and interaction with the building, especially at ground floor level.
          7.2 This is unacceptable with regard to Clause 79C (1) (b) and the objects and of the Act.
          7.3 This is also contrary to Clauses 2.5, 3.3 and 5.1 of the Central Sydney DCP 1996.
          7.4 A more suitable outcome would be to design a wholly new podium building with adequate floor to ceiling heights and provide larger spaces at both street frontages for active uses, including active frontages above ground level to the street and remove one further driveway.

          ISSUE 8 - Suitability of the Site
          8.1 The applicant has not demonstrated that the site is suitable for the proposed residential use in relation to contamination.
          8.2 This is contrary to Clause 79C (1) (c) and the objects and of the Act. This is also contrary to SEPP 55 - Remediation of Land and the Central Sydney Contaminated Land DCP.

          ISSUE 9 - The public interest
          9.1 The proposed development is inconsistent with many of the relevant controls including bulk, massing, floor space ratio, heritage conservation and amenity. In this regard the proposal will be detrimental to the public interest. and is unacceptable with regard to Section 79C (1) (e) of the Environmental Planning and Assessment Act 1979.

          ISSUE 10 - Submissions
          10.1 The application attracted 23 submissions, raising objection to the proposal on grounds of design, amenity, traffic, heritage, use, loss of outlook and loss of views.
          10.2 The submissions should be considered pursuant to Clause 79C (1) (d) of the Act.

          ISSUE 11 - Rail Corridor Investigation Area
          10.3 The applicant has not successfully demonstrated that the proposal will not impact on the Metro-West Investigation Area.
          10.4 This is contrary to Clause 79C (1) (b) and the objects. and of the Act, Clause 59 of the LEP 1996, Clauses 80 and 81 of the LEP 2005 and SEPP 63 - Major Transport Projects.

      The Applicable Statutes

25 At the time of lodgement, The Central Sydney Local Environmental Plan 1996 applied to the site. This LEP prohibits above ground public car parking. The public car park benefits from 'existing use rights' within the meaning of s.106 of the Environmental Planning and Assessment Act 1979. As such, the provisions of any planning controls which derogate from the existing use provisions of the EP&A Act 1979 are not relevant to the determination of the DA.

26 The following statutory controls apply to the site and the surrounding land.


    • State Environmental Planning Policy 11 -Traffic Generating Developments
    • State Environmental Planning Policy 55 - Remediation of Land
    • State Environmental Planning Policy 63 - Major Transport Projects
    • State Environmental Planning Policy 65 - Design Quality of Residential Flat Buildings
    • Central Sydney Local Environmental Plan 1996
    • Central Sydney Heritage Local Environmental Plan 2000
    • Central Sydney Development Control Plan 1996
    • City of Sydney Contaminated Land Development Control Plan 2004

27 A new LEP was gazetted on 9 December 2005. The new LEP 2005. does not prohibit public car parks.

      The Evidence

28 The evidence for the Respondent was heard from:

    • Ms S Scarano, area planning manager for the council.
    • Ms C Watson on behalf of Tetsuya’s Restaurant 529 Kent St.
    • Mr C Curran on behalf of the owner of the heritage item, the Judge’s House 531 Kent Street.
    • Mr M Freixas resident #375 Nos.298-304 Sussex St (Maestri Towers).
    • Ms J Torre resident #376 Nos 298-304 Sussex St (Maestri Towers).
    • Mr P. Barber on behalf of Frasers Town Hall Pty Ltd, 486-494 Kent St.

29 The case for the Second Respondent was settled, as Mr Larkin barrister for Rail Corporation of NSW submitted that his issues in Exhibit 2A had been resolved, and the applicant accepted draft conditions in Exhibit 1A as hand annotated. In case of any need for cross-examination on conditions as the hearing progressed, engineers for the Second Respondent on hand were:

    • Mr J Dunstan specialist construction management engineer
    • Mr C Bodner specialist tunnel engineer

30 The evidence for the Applicant was heard from:

    • Ms J Bindon consultant town planner
    • Mr R Green civil engineer
    • Mr D Haseler consultant architect for the design

31 A brief summary of Railcorp’s concerns is that sometime in the future, perhaps 2009-2017, there will be a new underground rail line from Redfern to Chatswood and its tunnels will be constructed under Kent and Sussex Streets. As a result any new foundations for the towers have to be placed carefully out of the zones of influence that might effect future tunnel works and rail operations. The existing foundations of the carpark had also been a concern, but accurate location of them had revealed that tunnel design would not be effected. The parties considered the issues related to SEPP63 had been resolved.

32 Mr Freixas and Ms Torre had adjacent apartments on the top 2 floors of their building, with panoramic views to the west and south over Darling Harbour and Chinatown respectively. The views to the west would be unaffected, but the views to the south would be blocked by the proposed Sussex St tower. Added to this is a roof deck off a solarium style living room extension to Ms Torre’s apartment. The view south from the solarium would be blocked, but added to that the roof deck is along the south edge of her building, so the south views from it would be blocked too, and the bulk of the top 2 floors of the proposal would dominate the deck whereas, it had only a 2m high clear glass balustrade along the south side now.

33 The applicant said that its building is entitled to the same height and setbacks as the Freixas/Torre building and that is complied with. A prudent purchaser of their apartments would have anticipated a building next door like the proposal at some time, and the consequent view loss in that direction.

34 However as a concession the applicant is prepared to setback its upper 2 floors 3 m from the south side of Torre’s deck, and 7 m from the Sussex St facade and that would give a visual reduction in bulk. The applicant would, as a result, have to redesign the apartment on the same level as Torre, and put a deck for it within the 3 x 7 m setback with a privacy screen between.

35 Ms Torre still complained of the southern view loss to the deck, and said the 7 m was not enough as it did not go the full length of the deck. The applicant’s Mr Haseler said the 7 m is to the lift shaft, and it could not be moved, and in any case, that section of the Torre deck and the east side had a masonry wall.

36 Ms Torre complained about potential noise from the lift shaft and the proposed deck. Mr Haseler observed that the vent exhaust in the Freixas/Torre building above their deck, made noticeable noise already, and it would be most unlikely that lift operation of the proposal could be heard through the concrete and masonry lift shaft walls. Any noise of activity on the proposed deck of the apartment would be occasional and normal residential amenity between neighbours. There would be no windows put in the proposed 2 floors adjacent the Feixas/Torre units, except at the deck level behind the privacy screen, and so visual privacy would not be effected.

37 Mr Barber also was concerned about view loss to the west from his building’s upper apartments due to the new towers. There would be some loss, but other existing buildings already caused parts of the views to be obscured. Given the council’s height limits, even a complying building would be likely to obscure some of the views.

38 Ms Watson and Mr Curran are both concerned about the additional bulk of the proposal, and the lack of attention to the existing 10-storey high ugly blank south wall of the carpark. The proposal will increase the height of the wall by enclosing the existing open 10th floor of the carpark, and above that constructing a bulky “transfer floor” as a structural platform above the carpark from which the new towers would rise.

39 Being next door to a heritage item of considerable significance, and the main entrance to the restaurant, they had hoped the proposal would include some reduction in the bulk, a more sympathetic architectural treatment, and no increase in overshadowing.

40 Tetsuya’s has an internal Japanese Garden of great beauty that is the principal focus of its dining room. It is already overshadowed at certain times of day and periods of the year. The towers will make that worse.

41 The Judge’s House has large trees in pleasant although small gardens that are part of the item, and of primary importance to the setting. Apart from that they make a considerable contribution to the streetscape.

42 Freixas and Torre also complained about garbage truck noise late at night. The existing nearby buildings already caused disturbance, and they hoped the proposal would not increase it.

43 Looking at the plans in Exhibit D, I could see spaces for waste bins, but it appeared they would have to be taken out onto the street. I asked how the Lumiere high rise and the Fraser suites and Medina and Maestri towers dealt with waste. I was told they had internal bays and garbage trucks entered the building for pick-up and that contained any noise.

44 Again looking at Exhibit D, it was plain that the vehicle entries of the proposal would not allow trucks to enter either for garbage or furniture. I was told that would be a Stage 2 detail, and perhaps higher entries could be provided by taking out parts of existing carpark floors, as is proposed for the commercial and foyer spaces. The carpark has only 2.25 m ceiling height and commercial spaces need 3.3 m minimum.

45 The 2.25 m ceiling height is one of the points raised by the respondent. It limits the re-use of the carpark structure some time in the future. It can only be used for carpark or storage. The council would prefer mixed commercial/residential at the lower levels in order to achieve an active street front.

46 The council also seeks to discourage on-site public parking in order to encourage public transport for people coming to the city.

47 The applicant referred to its existing use rights for the carpark, noting that it was built in 1960’s when council wanted public carparks around the city fringes. The council, and in this appeal, the respondent did not dispute the existing use rights. The applicant said the council’s policies to discourage new public carparks, and the expansion of the city’s commercial areas, including the movie/entertainment area of Haymarket/Chinatown has ensured the continued viability of the carpark. The applicant had no intention of abandoning that use.

48 What the applicant is prepared to do, is to build the towers independent of the carpark structure so that it could be removed and replaced at some time in the future.

49 The respondent put that future taxes on public carparks might make it non viable. I believe that argument is not reasonable in this appeal.

50 The respondent said the carpark adds to the bulk of the building. The applicant says it does not do so in the same way as buildings with 3.3 m high ceilings. The only reason the building exceeds the floor space ratio (FSR) and therefore a measure of bulk in the respondent’s evidence is the definition of FSR requires the inclusion of public carparking floorspace. That same floorspace has existing use rights, and therefore the definition does not apply. In my opinion without the carpark floorspace the proposal would be FSR 10.3:1. Including the carparking the proposal is FSR 12.8:1.

51 The applicant noted the newer adjoining and adjacent buildings to the proposal:

    • Lumiere and Fraser suites are FSR 16.9:1 .
    • The Medina and Maestri and nearby Radisson are FSR 15.5:1.
    • The Windsor is 14.5:1.

The applicable floorspace limit under the statue is FSR 10.36:1

52 The respondent said that the best solution is to demolish the carpark so that a much better streetscape, sympathetic design to the heritage items, and architectural solution to the entry foyer and commercial uses and access to the building could be evolved at the Stage 2 design competition.

53 If that could not be achieved then at least the proposal could be made to comply with the current applicable FSR if the top 3 floors of the carpark were to be demolished. That would enable the Sussex and Kent street podium heights of the proposal to match those of the Maestri and Medina respectively. Plus, it would reduce the bulk of the south wall of the existing carpark adjoining the heritage items of the Judge’s House and the Flying Angels Seafarers Centre, as well as Tetsuya’s. That would overcome the respondent’s and its experts major concerns. The Sussex Street tower should also be lowered by 2 floors to overcome the objectors’ concerns and give better form to the city by stepping the buildings down from Centrepoint to Darling Harbour. A further concern of the respondent is that the proposed 2 towers are too close together for privacy separation, and more gap is needed. This also improves the relationship with the internal courtyard/lightwell of Maestri/Medina by the proposal more closely matching the size of the courtyard/lightwell.

54 The applicant said the removal of the top 3 floors of the carpark would make the proposal non-viable, and the carpark can be made to match the podia of the adjacent building (Maestri), so the streetscape solution is workable.

55 The applicant said demolishing the existing carpark does not help sustainability, nor does it make practical sense, as the applicant would still rely on its existing use rights and re-erect a carpark for 900 cars. Putting the carpark underground is not practical because of Railcorp’s restrictions for future underground tunnels. The proposal goes some way towards the council policy of reducing available public carparking in the city by reducing public spaces to 700.

56 The applicant has suggested a number of treatments to the south wall of the carpark adjacent the heritage items, plus the setback of the enclosure of the top floor of the carpark and the transfer floor of the towers. This increased the previous 2 m setbacks in (iv) above. This has another advantage of minimising shadow impacts on the heritage items and Tetsuya’s, and this is a reasonable impact, because they would have to expect shadow impact from any new development on the subject site due to their location on its southern side.

57 During the visit to the site, its neighbours and environs, it could be seen that the matching of the podia heights was a desirable streetscape outcome. On Kent Street it is easily achievable. On Sussex Street it is more difficult.

58 The main feature preventing a match on Sussex is the new roof of the top floor of the carpark. The top floor is currently open. It seems to me that there is no reason to enclose that part of the top floor of the carpark. It is a public short-stay use and the 6 or so carspaces involved need not be enclosed. That would enable the podium height of the proposal in Sussex to be read from below as the balustrade height of the 10th floor of the carpark. The existing lift and stair tower that come forward to the street façade are not attractive elements, but it seems to me that they could be reduced by putting new lift equipment at the base of the tower instead of on top, and some alteration to the stair well. That would enable the Sussex façade to step back to the transfer floor above the visual podium level.

59 Oddly enough the architect’s elevation on DA_044a has illustrated this by using heavy lines up to floor level of the 10th carpark floor, and lighter lines for the enclosure of the proposed carpark roof above that.

60 The same elevation shows some low level vegetation on the proposed carpark roof at the Sussex street front, but it would hardly be seen from below. Its only benefit would be to the apartments on the tower “Ground Floor” that is the roof of the Transfer Floor.

61 This “Ground Floor” has a communal courtyard between the 2 towers and vegetation and a swim pool. The depth of the pool drops into the Transfer Floor so the pool edge is at courtyard level. On the same plan, the Transfer Floor appears to project forward of the tower façade on Sussex by about 2 m. Vegetation is shown on the top of that sufficient for the benefit of those units. The Transfer Floor is shown with a heavy black line on Level 11.

62 The engineer’s plan showed a transfer truss on Grid Line Y10 of Mr Green’s structural plan 041262-SK4-P1 and that would have necessitated the Transfer Floor to project; but the architects other plans did not reflect that. On the architect’s section drawing DA_042a the Y10 truss is not shown. The “Ground Floor” slab simply cantilevers out from the Grid Line Y9 truss. This is confirmed by the shadow of the units overhanging the Transfer truss on the architects Sussex St elevation DA_044a.

63 Mr Green hand annotated his plan in Exhibit A to delete the transfer truss on Grid Line Y10, and show a new location of this outer truss (closest to Sussex) such that it matched the architects plan placing the truss parallel to the Sussex façade about 5 m in. This aligns with the Sussex St façade of the apartments on the tower “Ground Floor”.

64 As a result I can see no necessity to roof the carpark 10th floor beneath the 5 m setback. The architect’s section drawing shows horizontal blades projecting from the carpark façade. The top most one can be aligned horizontally with the Maestri podium parapet on Sussex Street, and any carpark balustrade above that level can be setback and treated to have little visual presence from the street, as can be done to the lift shaft and stair well referred to above.

65 The evidence amongst the architect and the two planners revolved partly around the design question of how to get the proposal to match the different podium heights in Kent St and Sussex St without having to have a step in the top of the south wall facing the heritage items and Tetsuya’s.

66 It is my opinion that in a design competition, architects should be able to use the S-W corner of the carpark, where the Sussex St façade turns into the south façade, to create a transitional feature and make the level change there.

67 The respondent sought to sink the Transfer Floor into the carpark structure, and thus not increase the height of the south wall. This effectively would take out the 8th, 9th and 10th carpark levels, and achieves the reduction in height of the south wall and the reduction of the FSR that the respondent seeks.

68 The applicant’s experts said an acceptable solution – without losing more car spaces – is to step the spandrel wall of the transfer floor as far back as possible. The transfer truss ends, of which there are nine (9) along the south wall, must still project to the south wall, but the spandrels between each truss can be set back 5 to 6 m and 15 m, the 15 m being on Kent St end of the south wall adjacent the Judge’s House heritage item. This of course retains the enclosure of the carpark 10th floor on the south side and along the Kent St façade where it can be made to match the Maestri podium height.

69 Ms Bindon recommended that the Transfer Floor be set back to 4.4 m from the Kent Street façade to reduce its prominence and facilitate matching of the podium. She also said at the common boundary the setbacks of the tower floors should match the Maestri building, but average elsewhere. Ms Scarano agreed.


      Towers Ground Floor on Roof of Transfer Floor

70 The applicant says the south wall of the carpark can be treated to make it more acceptable. One solution being to break out the carpark walls at each floor and put a planter trough at each floor to provide a “green wall” that would add to the tall trees already along the boundary of Tetsuya’s and the Judges House with the subject sit. It seems to me that it is one of a number of solutions that would improve the relationship whilst accepting the existing use rights of the carpark. The difference in scale between the heritage items and their neighbours is huge. Whatever is built on adjoining and nearby sites the setting will remain one where the difference in scale accentuates the age and cultural and architectural values of the heritage items. Whilst not sympathetic to the heritage items, I cannot see a change in the future except improvements of the sort suggested.

71 Mr S Davies heritage expert, and Mr M Harrison urban design expert in their reports in evidence support this conclusion.

72 In regard to the respondent’s evidence that the existing carpark is not adaptable in the future to another use and should be demolished, Mr Green said that the carpark could be changed (if ever carparking becomes obsolete) by the removal of alternate floors above the lower ones kept for residents parking. Column strengthening and bracing would be necessary. Also, the towers being kept structurally independent of the carpark, the latter could be demolished if the need arose.

73 The council feels the Sussex tower should be lowered by 2 floors. The applicant says it meets the 80 m height limit established for the site and neighbours. The neighbours go to the height limit. The height limit achieves the urban design objective of council of stepping down building heights between Centre Point and Darling Harbour. The council has already somewhat compromised the “step down” by approving Lumiere and Fraser apartments at higher FSR than the policy permits.

74 The council says that those approvals were during the “pre-Olympics” period when incentives were given to developers to get residential accommodation into the CBD, and to fill in the “holes-in-the-ground” such as the Anthony Hordern (World Square) and the Regent Theatre (Lumiere) sites. Those concessions are no longer permitted.

75 It is appropriate now to consider the joint report of Messrs Scarano and Bindon on these matters as they arrived at quite a few points of agreement. Whilst I may not adopt all of them, it assists in determining the appeal. Their points of disagreement are clear. Also the alternative draft conditions they produced in Exhibits J and 11 also assist.

76 It is interesting to note that the Photo 1 dated 1 Nov 2006 of the model of the proposal they attach to their joint report in Exhibit 7, shows, on the Sussex façade that the Transfer Floor does project out to within a metre or two of the carpark façade and the south wall of the carpark. That is different to the proposal before me, but that difference is perhaps of no consequence to the rest of their report, as the photo is only illustrating the proposed setback from the Torre/Freixas apartments on the top floor.

77 The retention of the carpark they agreed is the starting point, and they disagreed on that. I have already give my decision and reasons for not demolishing the carpark.

78 I note an observation of Ms Bindon, that due to the low ceiling heights of the carpark, if in the future the existing use right is abandoned and it is demolished and commercial space erected with appropriate ceiling heights, then the current FSR limit would be complied with.

79 Another disagreement is that the existing carpark cannot achieve good streetscape solutions. The principal objective is to obtain an active street frontage via the commercial spaces creating interest and involvement of the public. The proposal achieves more than 50% of the street frontages as commercial spaces which is the council requirement. The size of the spaces are not large, but they are sufficient for shops, small restaurants, coffee shops etc. Mr Haseler said the tower entry foyers could be widened to 6m at the street front as shown in Exhibit B, to give them better identity and design potential. This further increases the ‘active” frontage. The commercial and the foyer spaces will necessitate removal of the section of carpark floor above to give ceiling of about 5 m, this gives good potential for design of those spaces. The re-cladding of the street facades and their matching to the Maestri podia and the treatment adjacent the heritage items has already been dealt with above. I agree with Ms Bindon that appropriate solutions are possible within the envelope controls suggested in her Exhibit J as modified by this judgment.


      80 I note the experts agreed that the two tower envelope is the best solution to relate to the Maestri building. The blank south walls of its 2 towers will be covered by the proposed 2 towers and the courtyard will be opened up. Ms Scarano favored the lowering of the Transfer Floor into the existing carpark so that the wall to the Maestri courtyard would not be increased.

      81 From being in the courtyard at ground level, it is only a walkway through from the Kent St Maestri building to the Sussex St building. The gardens are raised either side of the walkway with vegetation. It is not used for recreation, and being on the south side of the building would never get sun at the ground level. The increased height of the wall on the common boundary I do not see as an unacceptable impact.

      82 The height of the Sussex tower is sought by the council to be lowered by 2 floors. It already steps down 2 floors from the Kent St tower due to the ground slope. It is reasonable to allow the same height as the Maestri building adjoining the Sussex tower. The setbacks at the top 2 floors to improve the amenity of the Torre/ Freixas apartments are reasonable, and they will retain their full west and south-west views.

      83 Ms Scarano was concerned that the envelopes on the drawings were bigger than the floor space proposed. Ms Bindon said she and the applicant accepted that the specified floor space is the limit, and the envelopes only give flexibility for designers such as seen in the draft tower designs that do not form part of the application. They are also useful in understanding the issue about privacy between units in the towers, so I reproduce the draft plan below.

84 The Central Sydney Development control Plan 1996 and SEPP 65 require separation distances between 12 m and 24 m depending on the height level of the units, to give acceptable privacy between habitable room windows or balconies or public areas. The proposed envelopes have 10.2 m at the closest point and due to the splay of the envelopes, increasing to 32 m. Ms Bindon said the draft showed that with skilful layout of units and their windows and limited use of screening devices the envelopes could produce an acceptable outcome. I agree with that opinion.

85 It is not necessary to shave off part of the Sussex tower envelope to widen the gap between the buildings as Ms Scarano suggested. Mr Haseler said that the floor plates shown in the draft represented an economic layout, if the area was shaved off, the tower would become uneconomic.

86 Mr Haseler’s comment was both about the layout of units becoming unworkable, and the number of units per floor being too small to justify the service infrastructure. No doubt there are financial economics at play too, but I accept that his comment was about architectural practicalities.

87 Overall I have concluded that the retention and modification of the existing carpark, with the transfer floor and tower envelopes above, can produce an acceptable urban design outcome given skilful architecture in the Stage 2 design competition. The draft conditions of approval have been amended to reflect the provisions of this judgment.

88 There fore the Orders of the court are:

          1. The appeal is upheld.

          2. Development consent is granted to Stage 1 envelopes for two residential towers above the existing multi-storey carpark that is to be altered, refurbished and retained at Nos. 521-527 Kent St, Sydney, as shown in the drawings named in Annexure A hereto, all as amended by and subject to the conditions in Annexure A.
          3. The exhibits are returned to the parties except Exhibits A, B, C, D, J and 2, 3, 4, 5, 7, 9, 11 and 1A.

___________________

      K G Hoffman
      Commissioner of the Court
      ljr
24/01/2007 - correct the words up held to upheld - Paragraph(s) 88.1
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