Haralambis Management Pty Ltd v Council of the City of Sydney
[2013] NSWLEC 1176
•24 September 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Haralambis Management Pty Ltd v Council of the City of Sydney [2013] NSWLEC 1176 Hearing dates: 10, 11 September 2013 Decision date: 24 September 2013 Jurisdiction: Class 1 Before: Brown C Decision: 1. Finding that extra floor level containing two additional apartments is not appropriate for its context.
2. Timetable for filing of amended plans and agreed conditions to include modifications not in dispute.
Catchwords: MODIFICATION: application to modify development consent for 8 level residential apartment building with ground floor retail by adding extra floor level containing two additional apartments and a reduction in the floor to ceiling heights - exceedance of height and floor space ratio requirements - impact on desired future character of the area Legislation Cited: Environmental Planning and Assessment Act 1979
Sydney Local Environmental Plan 2012Cases Cited: Hooker Corporation Pty Limited v Hornsby Shire Council (unreported, 2 June 1986) Cripps J Category: Principal judgment Parties: Haralambis Management Pty Ltd (Applicant)
Council of the City of Sydney (Respondent)Representation: Ms S Duggan SC (Applicant)
Mr A Hawkes, solicitor (Respondent)
Wilshire Webb Staunton Beattie Lawyers (Applicant)
Council of the City of Sydney (Respondent)
File Number(s): 10487 of 2013
Judgment
COMMISSIONER: This appeal relates to the refusal by the Council of the City of Sydney of an application to modify Development Consent D/2012/321, under s 96(8) of the Environmental Planning and Assessment Act 1979, for an 8 level residential apartment building including ground floor retail and basement parking at 143-151 Bayswater Road, Rushcutters Bay (the site).
The modification application provides for a number of modifications, many not opposed by the council. The disputed modification provides for an extra level (Level 9), containing 2 additional apartments and a reduction in the floor to ceiling heights of the lower residential levels.
The council maintains that the application should be refused as the modification:
1. exceeds the maximum height requirement, and
2. exceeds the maximum floor space ratio (FSR) requirement.
The council did not press the contention that the reduced floor to ceiling height provides unacceptable amenity for the apartments.
Relevant planning controls
The site is within Zone B4 Mixed Use under Sydney Local Environmental Plan 2012 (LEP 2012). Clause 2.3(2) states:
(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
The zone objectives are:
- To provide a mixture of compatible land uses.
- To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.
- To ensure uses support the viability of centres.
The parties agreed that the appeal raised no issue with cl 2.3(2).
Clause 4.3 states:
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.
(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.
Note. No maximum height is shown for land in Area 3 on the Height of Buildings Map. The maximum height for buildings on this land are determined by the sun access planes that are taken to extend over the land by clause 6.17.
(2A) Despite any other provision of this Plan, the maximum height of a building on land shown as Area 1 or Area 2 on the Height of Buildings Map is the height of the building on the land as at the commencement of this Plan.
The Height of Buildings Map provides for a maximum height of 27 m whereas the proposal provides for a maximum height of 28.865 m.
Clause 4.4 states:
.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.
(2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.
The Floor Space Ratio Map provides for an FSR of 3.75:1 whereas the proposal provides for a FSR of 4.31:1.
Section 4.2.1.1 of the Draft Sydney Development Control Plan 2012 (Amendment 2) (the DCP) addresses height in storeys and street frontage height in storeys. The objective is:
(a) Ensure the height in storeys and street frontage height in storeys reinforces the existing or desired future neighbourhood character.
Section 4.2.1.1 reiterates the height standard in LEP 2012, s 4.2.1.1(1) specifies that the development must not exceed 8 storeys and s 4.2.1.1(3) specifies that the development must not exceed 8 storeys on the building street frontage. It was agreed that the building is 9 storeys however the building street frontage complies with s 4.2.1.1(3) because of the setback of Level 9.
Clause 4.6 relevantly states:
4.6 Exceptions to development standards
(1) The objectives of this clause are as follows:
(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,
(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.
(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 Director-General has been obtained.
Section 2 provides Locality Statements. The site falls with The Bays Locality Statement at s 2.4.6.
Height
Expert town planning evidence was provided by Mr Patrick Quinn, for the council and Mr Harvey Sanders, for the applicant. Mr Quinn states that cl 4.6 of LEP 2012 allows for exceptions to development standards provided it can be demonstrated:
- that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
- that there are sufficient environmental planning grounds to justify contravening the development standard.
Clause 4.6(4)(ii) provides that the consent authority must be satisfied that the proposed development will be consistent with the objectives of the particular standard and the objectives for the zone. Mr Quinn accepts that an extra two dwellings will have no measurable impact on the viability of the local centre (third zone objective) or the provision of public transport (second zone objective) but this should not be used as justification for the non-compliances. The proposal fails to achieve a better outcome in comparison to a compliant scheme.
Mr Quinn further states that there is no contextual argument, in terms of the existing development adjacent to the site to support the breach of the height control. The site is located within a block that is physically separated from the surrounding area by Bayswater Road and the Eastern Suburbs rail line. The proposal results in a development that is significantly taller than the immediately adjacent sites (even taking into account the proposed development application for the neighbouring site to the east at 143-151 Bayswater Road) and creates an unacceptable precedent for development within the island block.
The site is also visible from numerous vantage points within the public domain due to the sloping topography of the locality, particularly from the west where the ground level would be almost level with the additional storey, making it clearly visible. The potential future development of the neighbouring sites is unlikely to fully shield the additional storey from being viewed from the public domain.
Mr Quinn maintains that the height control of 27m combined with a DCP control that limits development on the site to 8 storeys identifies a clear future desired character for the area and the proposal is inconsistent with this character.
Mr Sanders comes to a different conclusion. He states that the maximum departure from the height standard is 1.85 m at the plant enclosure screen. This area has a size of some 25 sq m. The north-western corner of the screened area reaches a lesser height of 1.415 m because of the topography of the site. The maximum exceedance of the height standard therefore affects a very small area (< 5%) of the building footprint. The siting of the screened area over the rear of the building takes advantage of the shielding and separation from development to the south afforded by the adjoining Eastern Suburbs railway line (together with Craigend Street). In addition, the screen itself is designed to be visually unobtrusive and will not detract from any views of the building to the extent that it is able to be seen.
The proposed additional residential level involves lesser breaches of the height standard. That level reaches a height of between 27.06 m and 27.865 m to its roof level and a height of between 27.13 m and 27.935 m to the roof parapet. These heights reflect the existing ground levels of the site, which steps down towards the east. At its western edge, the height of the proposed additional level largely complies with the height standard (with, for the most part, a variation of only 0.06 m). The exceedance increases to a maximum of 935 mm at the eastern parapet. Again, this reflects the local topographic variations.
Mr Sanders concludes that the height of the proposed modified development is appropriate in the context of existing and approved development surrounding the site. The pattern of existing and approved building heights in the locality of the site is such that taller development is located along the main roads of Kings Cross Road/Bayswater Road and New South Head Road. The tallest forms are located along the top of the ridge marking the major centres in the area. Around the site, development varies in height up to 11 storey to the east of the site and 8-9 storeys to the north and south of the site, including many buildings with recessed upper level(s) above street wall height.
Also, the breaches would not give rise to any demonstrable impacts on the amenity of any of the existing residents in the locality, in terms of views, solar access or privacy nor would the breaches result in any adverse impact on the public domain, notwithstanding the fact that the proposed addition to the approved building envelope would be visible from some vantage points in the vicinity of the site.
Floor space ratio
Mr Quinn states the proposal is inconsistent with the LEP objectives for FSR, in particular 4.4(1)(d) in that the "new development reflects the desired character of the locality". The existing approval achieves what is perhaps the maximum site coverage possible given the limitations of the site. The majority of the additional floor space proposed results in a non-compliance with LEP 2012 height requirement. The proposal is inconsistent with the desired future character of the locality and will impact adversely on the streetscape. The proposed modifications do not meet the objectives of 4.6 in that they fail to achieve a better outcome for the development or from the development in comparison to a compliant scheme.
Mr Sanders states that when measured in accordance with the definitions in the LEP, the proposed modified development has a FSR of 4.31:1 (2,185 m2 GFA). This represents an increase of 243 m2 (or 0.48:1) compared with the originally approved development with an FSR of 3.83:1. The modification application exceeds the FSR requirement of 3.75:1 by 0.56:1 (or 283 m2 GFA). Of the additional floor space proposed, 0.11:1 (or 58 m2) is accommodated within the approved building envelope as a result of the relocation of basement storage spaces to above ground locations and internal modifications. The other additional floor space results from the floor area on Level 9.
Mr Sanders accepts that the latter represents the additional "visible" floor space associated with the proposed modified development but he considers this additional floor area to be minor in the context of the applicable standard. In his opinion, the proposed modification still reflects the desired character of the locality, particularly as its external appearance from the public domain will not change in any material way compared with the approved development. The proposal is also consistent with the general principles and outcomes of 'The Bays' Locality Statement contained in cl 2.4.6 of the DCP. While the Locality Statement does not specifically address the site or the island block, its objectives and outcomes are met by the proposal. In particular, the additional height of the proposal is consistent with the principle to enable lower building heights on the top of the slope and taller building heights at the bottom of the slope, given the location of the site on the lower slope of both the valley from King Cross and the island block.
Height/floor space ratio - findings
The assessment framework
Mr Quinn relied on the provisions of cl 4.6 - Exceptions to development standards in LEP 2012 to support his position although Ms Duggan SC, for the applicant and Mr Hawkes, for the council agree that as a matter of power, cl 4.6 does not apply because the proposal is a modification application rather than a development application. It is relevant to have regard to cl 4.6 however an inconsistency with the provisions of this clause would not necessarily be a reason to refuse the modification application. In essence, the merits of the modification should determine its acceptability or not.
Mr Quinn also placed significant weight on the numerical provisions for height and FSR although Ms Duggan and Mr Hawkes agree that LEP 2012, through cl 4.6, provided flexibility in the application of development standards. The parameters for flexibility are set out in cll 4.6(3) and (4). Specifically, "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"(cl 4.6(4)(ii)).
The relevant objectives of the height standard are:
a) to ensure the height of development is appropriate to the condition of the site and its context,
...
(c) to promote the sharing of views,
The relevant objectives of the FSR standard are:
(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.
It was generally accepted that the zone objectives are so broad that it could not reasonably be argued that the modification application would be inconsistent with these objectives.
Height
The Dictionary provides the following relevant definitions:
building height (or height of building) means the vertical distance between ground level (existing) and the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like.
ground level (existing) means the existing level of a site at any point.
Level 9 consists of two components; being firstly, the residential accommodation and secondly, the lift overrun, mechanical plant ductwork and enclosure and balustrade located on the roof of the residential accommodation. The residential accommodation has a staggered setback from the lower floor with a minimum 2 m to the northern (Bayswater Road) setback, side setbacks between 2 m and 3 m and a rear setback between zero (the air conditioning area and fire stairs) and 3 m. Based on the definition of building height the maximum height occurs at the top of the mechanical plant ductwork enclosure at 1.85 m above the height standard.
The 27 m height plane is shown on the architectural plans at each boundary of the site however given the slope of the site and as Level 9 is setback from the boundaries, the exact exceeedance is not shown although the breaches (see paras 21, 22 and 26) identified by Mr Sanders were not disputed by Mr Quinn.
As part of the site inspection, the location and surrounding areas were visited and an estimation made of the likely form of the proposed building. From Bayswater Road, directly opposite the site, it was agreed that Level 9 could not be seen because of the setback at this level.
To the east (and at a lower level) Level 9 would likely to be screened by a complying building on the adjoining site. As I understand, a development application has been submitted to the council that complies with the 27 m maximum height requirement on this site.
To the west, along the Bayswater Road, part of the Level 9 may be partially visible, depending on the location. The further west, the more likely the proposed building will be screened by any future building that satisfies the maximum height requirement. Further to the west, and from the overhead pedestrian walkway, Mr Sanders maintains that the building would be screened by the adjoining building where as Mr Quinn maintained that a "sliver" of the building may be viewed from this location.
From the south, the building and Level 9 will be visible above the Eastern Suburbs railway line viaduct at McLachlan Avenue although Mr Quinn and Mr Sanders differed on the impact.
In relation to maximum height, the relevant objective is to "ensure the height of development is appropriate to the condition of the site and its context" (zone objective (a)). It was agreed that the modified proposal has no affect on views (zone objective (c)).
With the benefit of the site inspection and an understanding of the modification plans, I am not satisfied that the modified building "is appropriate to...its context" for a number of reasons. I have taken "context" to mean the land within the "island" created by the Eastern Suburbs railway line, Bayswater Road and Nield Street that incudes the site. The land outside this area has some relevance but not to the same extent as the "island" because of the significant physical barriers that define this area, its undeveloped nature (when considered to the development potential under LEP 2012) and the ability to directly compare adjoining buildings. As this area is undergoing redevelopment, it is appropriate that the desired future character is that anticipated by LEP 2012.
The most visual and greatest breach of the height standard can be seen from the south, as Level 9 does not have the same opportunity to be screened by adjoining buildings or steep sight lines available on other elevations. While Mr Sanders suggested that the perceived height would be diminished by the Eastern Suburbs railway line viaduct in the foreground, the breach of the height standard would still be obvious when compared to new development on the adjoining properties (on the presumption that these buildings satisfy the height requirement). Based on the architectural plans of the southern elevation (and using the 27 m height standard at the boundary in the absence of any more accurate indication), the height standard cuts Level 9 in a straight line from around 2 m on the western side and around 1 m on the eastern side above the floor level. The plant and other roof equipment are all located well above the 27 m height standard line. Even accepting that the view from the McLachlan Avenue will reduce the perceived height of this area because of the lower viewing position and also that the 27 m height standard is shown on the boundary, rather than the building, I am satisfied that the exceedance of the height standard will be clearly visible from the McLachlan Avenue area. This appearance of Level 9 will be exacerbated by the extension of the air conditioning and plant area on this level in the same vertical plane as the lower levels of the building. While the McLachlan Avenue area currently has a number of motor showrooms, LEP 2012 provides the same Mixed Use zoning as the subject site but with lower heights and FSRs. The potential residential occupation of this area, in my view, places a greater emphasis on providing a consistent character for the site and the adjoining properties.
Even though Mr Sanders appropriately addressed the breach of the height standard through the relevant objective, I am not satisfied that sufficient emphasis was given to the 27 m numerical standard. Clause 4.3(2) provides that the "height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map". The starting point for height is cl 4.3(2) and in this case, a maximum height of 27 m. While flexibility is available in the application of development standards, it does not follow in my view, that simply because the noncomplying height of a building may not able to be seen that this, in itself, justifies a breach of the height standard. The 27 m standard must have some work to do in considering the appropriate height of a building on the site.
In Hooker Corporation Pty Limited v Hornsby Shire Council (unreported, 2 June 1986) Cripps J, makes the following comments on a SEPP 1 objection, although I see no reason why the comments are not relevant in this case:
...it now established that is not sufficient merely point to what is described as absence of environmental harm to found an objection. Furthermore, the objection is not advanced, in my opinion, by an opinion that the development standard is inappropriate in respect of a particular zoning. The Court must assume a development standard in a planning instrument has a purpose.
A greater emphasis on the numerical standard, in this case, has more force when combined with the breach of the FSR standard and to a lesser degree, the breach of the number of storeys control in the DCP.
I do not accept that the modification application "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". Specifically, the modification application does not provide a height that is appropriate to...its context.
In my view, the proposed modification application has unacceptable visual impacts, due to its height, on the desired future character of the area (s 79C(1)(b) of the Environmental Planning and Assessment Act 1979).
Floor space ratio
The proposed modified development has a FSR of 4.31:1, which represents an increase of 0.48:1 above with the originally approved development and exceeds the FSR standard of 0.3.75:1 by 0.56:1.
While Mr Sanders differentiates between new floor area accommodated within the approved building envelope and outside the approved building envelope, the former is not a significant amount (58 sq m or 0.11:1). I do not accept that the modification application is consistent with objective (b) in that the additional floor area largely manifests itself in the two apartments on Level 9 and does this not "reflects the desired character of the locality in which it is located...". In my view, the desired character of the locality is best found in the development standards that guide development in the B4 Mixed Use zone, particularly the 27 m maximum height standard and the 8 storey requirement in the DCP. As was agreed by the parties, The Bays Locality Statement provides no particular help in determining what might be the desired character for the site .
In my view, the proposed modification application has unacceptable visual impacts, due to the amount of floor space, on the desired future character of the area (s 79C(1)(b) of the Environmental Planning and Assessment Act 1979).
Further action by the parties
Ms Duggan submitted that if the Court was not supportive of the two additional dwellings, there were a number of matters addressed by the modification application that were supported by the council. These agreed matters need to be the subject of new plans that delete the two additional dwellings but retain the agreed changes. Changes may also be required to the car parking numbers so to reflect the reduced number of dwellings.
Discussions can take place with the parties for amended plans and conditions at the time the findings are made on the two additional dwellings.
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G T Brown
Commissioner of the Court
Decision last updated: 24 September 2013
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