Highbury Warung Pty Ltd v North Sydney Council

[2023] NSWLEC 1329

Land and Environment Court

New South Wales

Medium Neutral Citation:

Highbury Warung Pty Ltd v North Sydney Council [2023] NSWLEC 1329

Hearing dates:

20 March 2023

Date of orders:

28 June 2023

Decision date:

28 June 2023

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) The Applicant’s written request, pursuant to cl 4.6 of the North Sydney Local Environmental Plan 2013 (NSLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the NSLEP, is upheld.

(2) The appeal is upheld.

(3) Consent is granted to Development Application DA379/21 for the partial demolition of an existing residential apartment building, excavation and construction of a basement, new basement entry, construction of new apartment additions above and alteration of the remaining apartments at 1 Warung Street, McMahons Point, subject to the conditions of consent at Annexure A.

(4) The exhibits, other than 2, 5, 6, A, B and D, are returned.

Catchwords:

APPEAL – development application – residential apartment building development – alterations and additions – heritage conservation – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development 2000, Sch 1

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 10.2, 10.18, 10.23, 10.56, 10.57, Ch 10

North Sydney Local Environmental Plan 2013, cll 1.2, 2.1, 2.2, 4.3, 4.4, 4.6, 5.10, 6.10, Sch 5

Texts Cited:

North Sydney Development Control Plan 2013

NSW Department of Planning, Apartment Design Guide, 2015

NSW Department of Planning, Planning Circular PS 18-003, 2018

Category:

Principal judgment

Parties:

Highbury Warung Pty Ltd (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/157325

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Highbury Warung Pty Ltd (the Applicant), against the refusal of Development Application DA379/21 (the DA) by North Sydney Council (the Respondent).

2. The DA sought consent for the partial demolition of an existing residential apartment building, excavation and construction of a basement, new basement entry, as well as construction of new apartment additions above and alteration of the remaining apartments at 1 Warung Street, McMahons Point (the site).

3. More specifically, the DA proposes the following works:

1. Demolition of the eastern portion of the existing residential apartment building to remove three apartments and nine undercroft car parking spaces, and demolition of internal and external components within the building including walls, stairs, balconies, windows and doors.

2. Partial excavation and demolition of an existing sandstone, concrete and brick wall to facilitate vehicular access to the basement from Henry Lawson Avenue. The basement level comprises twelve car spaces arranged in car stackers, five storage cages, stairwell and lift to access upper levels and turntable and vehicular access areas.

3. Construction to extend the eastern portion of the building and alterations and additions to the retained component of the building to create:

1. A lower-ground level containing one three-bedroom plus study unit, storage cages and bike parking, plant rooms, garbage room, communal open space with undercover area.

2. A ground floor level containing a two-bedroom unit, a two-bedroom plus study unit and a three-bedroom plus study unit.

3. A first floor level, containing a two-bedroom plus study unit, a three-bedroom unit and a two-level three-bedroom plus study unit.

4. A second floor level, containing the upper level of the unit below and two two-bedroom plus study units.

5. Retention of the existing roof and construction of a flat roof for the new and re-built eastern portions.

4. The construction of new stormwater infrastructure, removal of seven trees within the site and landscaping works.

4. Prior to commencement of the hearing in these proceedings, on 25 November 2022, the Court granted leave to the Applicant to amend the DA and to rely upon amended plans and documents. The amended DA remains similar in most aspects as the original DA, but incorporates design changes intended to resolve, or reduce the number of, the Respondent’s contentions.

5. The amended plans have been prepared by Squillace Architects (now generally marked as Revision D, E and F with a latest date of 20 October 2022). These architectural drawings form Exhibit B in the proceedings and are the subject of the appeal.

The site and its context

6. The site is located at 1 Warung Street, McMahon’s Point and is legally described as SP 1927.

7. The corner site is irregular in shape with an area of approximately 985sqm and has frontages to Warung Street to the north, Blues Point Road to the west and Henry Lawson Avenue to the south. There is one neighbour sharing an irregular common boundary to the east at 3 Warung Street.

8. The site currently contains a freestanding, textured red brick, three-storey residential apartment building dating from the 1960s. The existing building comprises twelve units generally situated above at-grade parking, including an extent of undercroft parking. Site access for vehicles and pedestrians is provided from Warung Street to the north.

9. The site has a pronounced topography, falling from approximately Reduced Level (RL) 18m in the northeast corner to the southern and western site boundaries at approximately RL 13m.

10. These southern and western site boundaries coincide with a constructed sandstone, brick and part concrete retaining wall and a hewn sandstone cliff face that presents to Blues Point Road and Henry Lawson Avenue. As the surrounding topography falls towards the south, this retaining wall and cliff face increase in scale relative to Blues Point Road and Henry Lawson Avenue, stepping up from approximately 1m to approximately 6m in height.

11. The building on the subject site is not an identified heritage item, but is located within the McMahons Point South Heritage Conservation Area (HCA) as defined in Sch 5 of the North Sydney Local Environmental Plan 2013 (NSLEP).

12. A number of the neighbouring dwellings along Warung Street, at numbers 3, 5, 7 and 9, are locally listed heritage items identified within the NSLEP. Similarly, the parcels of land to the south of the site, including Henry Lawson Avenue and Henry Lawson Reserve, along with a nearby bus shelter are variously locally listed heritage items.

13. Particularly relevant to this matter is the heritage status and significance of the retaining wall and hewn cliff face on the southern boundary of the site, which dates from the construction of the former tram line that served the McMahons Point Ferry Wharf located at the end of Henry Lawson Avenue. The cliff face and wall present as an engineered cutting and has significance for its association with the 1908 tram and ferry service at a point in Sydney’s history prior to the construction of the Sydney Harbour Bridge.

14. In the immediate vicinity of the site - generally to its south - lies a series of connected, open landscaped public spaces including Henry Lawson Reserve and Blues Point Reserve, which together form the edge to Sydney Harbour, in this area known locally as Blues Bay.

15. By virtue of the site’s elevated topography, atop the cliff face and retaining wall, it enjoys striking views to the south and southeast towards the Sydney CBD and Sydney Harbour Bridge. For this same reason the site is prominent and visible from many points within the public domain and from the Harbour.

16. As well as the landscaped foreshore and harbour setting, the immediate visual catchment surrounding the site includes a mixed urban character of residential development in the form of traditional detached dwellings (including a number that are heritage listed), various lower-rise residential apartment buildings dating from the inter-war period up to the present day, and a smaller number of taller point-form towers, including the heritage listed Blues Point Tower, a prominently sited Modern residential apartment building dating from 1962.

The relevant planning controls

17. The key relevant statutory planning and development controls are as follows:

1. The EPA Act.

2. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development 2000 (SEPP 65).

3. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity).

4. NSLEP.

5. North Sydney Development Control Plan 2013 (NSDCP).

18. Pursuant to cl 2.2 of the NSLEP, the site is mapped within the Zone R3 Medium Density Residential land use area. Development for the purpose of a residential apartment building, including alterations and additions, is permitted with consent.

19. Pursuant to cl 4.3 of the NSLEP, Height of buildings, the relevant development standard for the site is 8.5m.

20. Pursuant to cl 4.4 of the NSLEP, Floor space ratio (FSR), there is no applicable development standard for FSR.

21. Pursuant to cl 5.10 of the NSLEP, Heritage conservation, the site is located within the McMahons Point South HCA (CA14) as set out at Sch 5, Pt 2 of the NSLEP.

History of the DA

22. The Respondent’s Amended Statement of Facts and Contentions, forming Exhibit 2 in these proceedings, sets out the history of the DA. A concise summary follows.

23. DA number DA379/21 was lodged by the Applicant with the Respondent on 9 November 2021.

24. The DA was publicly exhibited by the Respondent for 14 days between 26 November and 10 December 2021. A total of eleven submissions were received by the Respondent raising issues including:

1. Concerns for heritage impacts upon the cliff face and retaining wall.

2. Exceedance of the maximum height of building development standard.

3. The resultant bulk, scale and density of the proposal.

4. The proposed reduction of site setbacks, particularly to the north-east.

5. Environmental impacts of traffic safety, residential amenity, view loss, privacy and solar access.

6. Heritage impacts within the HCA more generally, arising from an uncharacteristic built form.

7. Loss of trees and landscape area.

8. Excessive excavation, noise and construction impacts.

25. The Respondent’s advisory Design Excellence Panel (the Panel) reviewed the DA for consistency with the Design Quality Principles set out in SEPP 65 and against the various targets and guidance provided within the Apartment Design Guide, 2015 (ADG). The Panel raised a number of issues including:

1. Overshadowing on Blues Point Reserve.

2. Extent of basement excavation and its potential impact upon nearby heritage items.

3. Partial demolition of the retaining wall and cliff face for the proposed basement entry and the potential this might establish a precedent for similar basement entries, which cumulatively might diminish its associated heritage values.

4. Exceedance of the maximum parking rate given proximity to public transport.

5. The design treatment of the proposed roof scape, given its visibility from nearby dwellings.

6. The proposed material palette - comprising render, steel and glass - and its perceived incongruity with the character of the immediate urban context.

26. On 14 December 2021, the Respondent wrote inviting the Applicant to withdraw the DA given a number of substantive planning issues including:

1. The advice of the Panel and inconsistencies with SEPP 65 and the ADG.

2. Traffic and parking.

3. Waste management.

27. On 4 April 2022, the Applicant submitted additional information and an amended design intended to address these substantive planning issues.

28. The amended DA was further exhibited in accordance with the Respondent’s Community Participation Plan for 14 days between 21 April and 6 May 2022. A further eight submissions were received by the Respondent, which generally restated or emphasised earlier issues raised.

29. On 1 June 2022, the DA was refused by the North Sydney Local Planning Panel. The notice of determination (which forms part of Exhibit 3 in these proceedings) includes reasons for refusal which are summarised as:

1. Pursuant to s 4.15(1)(a) of the EPA Act, the DA does not comply with the following relevant environmental planning instruments and development controls:

1. SEPP Biodiversity - because impacts upon the stability and integrity of the sandstone wall and cliff face are inconsistent with the relevant provisions under Ch 10 of SEPP Biodiversity.

2. SEPP 65 - because the DA does not achieve Design Quality Principles 1, 2, 3, 4, 6, 7 and 9 as set out at Sch 1 of SEPP 65, and does not meet key guidance and design criteria set out in the ADG.

3. NSLEP - cl 1.2 Aims of Plan - because the DA does not meet particular aims set out at cl 1.2 (2)(a),(2)(b), (2)(c) and (2)(e).

4. NSLEP - cl 2.1 Land use zones - because the DA does not meet key objectives of the R3 Medium density residential zone relating to not compromising amenity of surrounding area and natural and cultural heritage of the area, providing a suitable visual transition between high density and low density residential areas and ensuring a high level of residential amenity is achieved and maintained.

5. NSLEP - cl 4.3 Height of buildings - because the DA does not satisfy the particular objectives set out at cl 4.3 (1)(a), (1)(b), (1)(c), (1)(e), (1)(f) and (1)(g).

6. NSLEP - cl 4.6 Exceptions to development standards - because the Applicant’s written request, seeking to vary the development standard for height of building, made pursuant to cl 4.6 does not demonstrate sufficient environmental planning grounds that would justify the contravention of the development standard, does not demonstrate consistency with the objectives of cl 4.3, Height of buildings, and is not consistent with the R3 Medium density residential land use zone objectives.

7. NSLEP - cl 5.10 Heritage conservation - because the DA does not meet the provisions of this clause.

8. NSLEP - cl 6.10 Earthworks - because the DA does not meet the provisions of this clause.

9. NSDCP - Part B, Section 1.3 - Environmental criteria - because the DA fails to meet relevant objectives and controls.

10. NSDCP - Part B, Section 1.4 - Quality built form - because the DA fails to meet relevant objectives and controls.

11. NSDCP - Part B, Section 1.5 - Quality urban environment - because the DA fails to meet relevant objectives and controls.

12. NSDCP - Part B, Section 13 - Heritage and Conservation - because the DA fails to meet relevant objectives and controls.

13. NSDCP - Part C, Section 9 - McMahons Point South Conservation Area - because the DA fails to meet relevant objectives and controls.

2. Pursuant to s 4.15(1)(b) of the EPA Act, the DA is likely to have adverse impacts on the following aspects on the environment:

1. Heritage.

2. Streetscape.

3. View loss.

4. Privacy, amenity and overshadowing.

5. Structural stability and integrity of adjoining land.

3. Pursuant to s 4.15(1)(c) of the EPA Act, the site is not suitable for the proposed development for the following reasons:

1. Excessive bulk, scale and density.

2. Inadequacy of response to topography, context and setting.

3. Unsympathetic response to HCA and foreshore area.

4. Adverse impacts and lack of residential amenity for future occupants.

4. Pursuant to s 4.15(1)(e) of the EPA Act, the DA is not in the public interest and represents an undesirable precedent exhibiting a poor design response within a HCA and foreshore area, non-compliance with the height of building development standard set out at cl 4.3 of the NSLEP and inconsistencies with SEPP 65 and the relevant design guidance offered by the ADG.

30. On 3 June 2022, the Applicant appealed to the Court against the Respondent’s refusal of the DA.

The issues

31. As noted earlier in this judgment, on 25 November 2022 and prior to the hearing, the Applicant was granted leave by the Court to further amend the DA and rely upon amended plans and documents. The final amended architectural drawings (Exhibit B in these proceedings) form the subject of the appeal.

32. The contentions raised by the Respondent in response to the final amended DA are found in the Amended Statement of Facts and Contentions, filed with the Court on 19 December 2022, and forming Exhibit 2 in these proceedings.

33. These contentions are summarised below, and at the commencement of the hearing, all remain pressed by the Respondent:

1. Heritage - the DA should be refused because it does not conserve the environmental heritage of North Sydney and will have an adverse impact on the McMahons Point South HCA (CA14).

2. Foreshore scenic quality - the DA should be refused because it does not satisfy the relevant requirements of provisions set out at Ch 10 of SEPP Biodiversity.

3. NSLEP - the DA should be refused because it is inconsistent with NSLEP cl 1.2, Aims of Plan, and is inconsistent with the objectives of the R3 Medium Density Residential zone.

4. Precedent - the DA should be refused because it would create an undesirable precedent in the area.

5. Public interest - the DA should be refused because it is not in the public interest given the contentions set out above.

34. Notably, and in light of the final amended DA, these remaining contentions have narrowed from those earlier pressed.

35. In brief summary, a number of earlier contentions (corresponding with a number of reasons for refusal of the original DA) have fallen away, including those relating to:

1. Exceedance of building height.

2. Excessive earthworks.

3. The achievement of design quality pursuant to SEPP 65.

4. A number of non-compliances with the NSDCP (noting that those associated with heritage remain pressed).

5. Waste management.

36. Additionally, email correspondence between the parties’ solicitors, which serves as further detailed particulars in clarifying the amended statement of facts and contentions (forming Exhibit C in these proceedings) is instructive in further narrowing those remaining contentions. In this email, the Respondent provides clarity on the breadth of a number of key contentions.

37. In the context of Contention 1 - Heritage - the Respondent sets out in the email that:

“…the component of the amended proposal that does not improve the contextual design and will have a negative visual impact on the site and nearby heritage items and the conservation area, is the creation of a vehicular access off Henry Lawson Avenue. This is not acceptable having regard to the physical and visual impact on the rocky outcrop and the landscape setting.”

38. And in the context of Contention 2 - Foreshore scenic quality - the email sets out again that the extent of the Respondent’s contention is limited to:

“The creation of vehicular access via cutting into the stone wall off Henry Lawson Avenue.”

The evidence

Oral submissions from residents

39. At the commencement of the hearing, the Court benefited from oral submissions made by a number of local residents and also visited two nearby owners’ properties.

40. Each of these residents had previously made written submissions to the Respondent setting out their concerns with the DA, and used the opportunity to address the Court to reinforce these submissions, which in summary emphasised concerns for:

1. Excessive excavation and risk of structural damage to an adjacent property.

2. Privacy, cross viewing, building form and separation impacts.

3. Overshadowing impacts beyond the subject site affecting a neighbouring property.

4. View loss impacts.

5. Traffic safety associated with the proposed basement access.

6. Heritage impacts.

7. Loss of trees and landscaping.

The expert heritage evidence

41. The Court was assisted by experts in heritage who conferred to prepare a joint expert report. The experts are Mr James Phillips for the Applicant, and Ms Surbjit Bhatti for the Respondent. Their report forms Exhibit 5 in these proceedings.

41. At p 4 of the joint expert report (and reflecting similar terms included within Exhibit 2) the Respondent’s contention addressing heritage is set out as follows:

“The development application should be refused because approval of the proposal will not conserve the environmental heritage of North Sydney and will have an adverse impact on the heritage conservation area McMahons Point South (CA 14) pursuant to NSLEP 2013.”

43. A series of particulars (b)-(h) provided within the contention add further colour and detail to this central question of heritage conservation. Particular (a) serves to set out the relevant parts of cl 5.10 of the NSLEP and is not repeated here.

44. The particulars (b)-(h) of Contention 1 include:

“…

(b) The existing building occupies a prominent and highly visible location and is orientated to take advantage of harbour views. It is set within a significant heritage context and is directly adjacent to a heritage item at 3 Warung Street (I0515). The existing building is uncharacteristic of the heritage conservation area, and the key emphasis of any future development on the site is to encourage an improved outcome by incorporating changes to improve the contextual design and visual impact on the site generally and on the setting of the nearby heritage items adjacent to the site. To achieve the objectives of clause 5.10, the aim of the development should be to reclassify the building from ‘uncharacteristic’ to ‘neutral’ or even ‘contributory’.

(c) The creation of a vehicular access off Henry Lawson Avenue is not acceptable having regard to the physical and visual impact on the rocky outcrop and the landscape setting with Henry Lawson Reserve. The proposed vehicular access is disruptive to the scenic and environmental qualities of the site and its proximity to Henry Lawson Reserve and will adversely impact on the historical evidence of the man-made wall that follows the line of the tramline that once serviced the area. The man-made sandstone wall to the northern side of Henry Lawson Avenue is important to the setting of the buildings above it and the heritage conservation area.

(d) The proposed vehicular access off Henry Lawson Avenue will also have an adverse impact on:

a. The bus shelter in Henry Lawson Avenue, which has heritage significance in terms of the importance of the provision of public transport in the area and is identified in Schedule 5 of the NSLEP as an item of local heritage significance (Schedule 5: “North Sydney bus shelters”, BS061, local significance, item I0407).

b. The Blues Point Waterfront Group, listed as an item of local heritage significance I0423 in Schedule 5 of NSLEP 2013.

(e) If approved, the proposed vehicular access off Henry Lawson Avenue could set an unacceptable and undesirable precedent for stone cutting into the manmade rock wall, which will have a cumulative adverse impact on the heritage significance of:

a. The McMahons Point South Heritage Conservation Area; and

b. The heritage item at 3 Warung Street; and

c. The bus shelter in Henry Lawson Avenue; and

d. The Blues Point Waterfront Group; and

e. Potentially the “former tram turning circle and McMahons Point ferry wharf”, which is listed as an item of local heritage significance (I0452) in Schedule 5 of the NSLEP 2013.”

(f) Having regard to the unacceptable design, bulk, scale and height of the proposal, the development application does not respond to the heritage context of the site. Approval of the application will have detrimental impacts on the quality and significance of the conservation area, and the adjoining heritage item and other heritage items in the vicinity of the site.

(g) The development application is not consistent with the objectives of clause 5.10 or clause 5.10(4) because approval of the proposal does not conserve the environmental heritage of North Sydney and the Court would not be satisfied that the proposal will not have an adverse impact on the heritage significance of the McMahons Point South Heritage Conservation Area (CA14), the adjoining and nearby heritage items. The development application must be refused.

(h) Having regard to the above, the development application is also not consistent with:

a. The objectives and provisions under Part B, Section 13 - Heritage and Conservation of NSDCP 2013, in particular:

i. Guiding Statement 13.1.1.

ii. The general objectives in Section 13.1.2.

iii. The objectives and provisions in Section 13.4 - Development in the Vicinity of Heritage Items.

iv. The objectives and provisions in Section 13.6 - Heritage Conservation Areas.

v. The objectives and provisions in Section 13.8 - Demolition, particularly Demolition of uncharacteristic items.

vi. The objectives and provisions in Section 13.10.5 - Apartment Buildings.

b. The objectives and provisions under Part C, Section 9.8 - McMahons Point South Conservation Area.”

45. The joint report sets out the extent of disagreement between the heritage experts regarding whether the DA satisfies the test of conserving the environmental heritage of North Sydney and deals with each of the relevant particulars in turn.

46. Addressing particular (b), which deals with the visual prominence of the site and its setting, at p 5 of the joint report, Mr Phillips states:

“The proposal is to modify the existing building in a manner that enhances its streetscape presence and adds to deep soil planting. This is achieved through revising the elevations to provide a contemporary, articulated facade and improved presentation to the immediate vicinity and to wider views to and from Sydney Harbour.

The proposal achieves the objectives of clause 5.10, with a more neutral colour scheme, better architectural form and detailing and enhanced planting. The proposed works would make it possible to reclassify the building from ‘uncharacteristic’ to ‘neutral’. Within the limitations of working with the existing building in terms of its form, massing and scale, the proposal achieves an architectural outcome that is acceptable in terms of streetscape and surrounding residential flat buildings and the adjacent heritage item.”

47. Also on p 5 of the joint report, Ms Bhatti for the Respondent sets out a contradictory position:

“From a heritage conservation point of view and with reference to the area character statement relevant to the site, the proposed development remains uncharacteristic within the McMahons Point South conservation area.”

48. Moving to particular (c), which deals with the acceptability or otherwise of heritage and scenic impacts arising from the creation of the proposed vehicular entry to the basement through the existing sandstone, brick and part concrete retaining wall and cliff face on Henry Lawson Avenue. At p 6 Mr Phillips states:

“The creation of a vehicular access off Henry Lawson Avenue is acceptable having regard to the physical and visual impact on the rocky outcrop and the landscape setting with Henry Lawson Reserve. The opening has been carefully designed to work in with the existing stone conditions and the brickwork above it. The design has repose within the wall itself and the overall streetscape and will allow the part of the wall to be ‘tidied up’ in comparison with the current wall that is partially brick and concrete sewer pipe encasement. The area of solid rock cutting west of the opening is unaffected by the proposal as is the original brick wall to the east.

The proposed vehicular access has little or no impact on the scenic and environmental qualities of the site and its proximity to Henry Lawson Reserve and will have no impact on the historical evidence of the man-made wall that follows the line of the tramline that once serviced the area. The line of the tramway remains clear, being best demonstrated by the characteristic ‘tramway curve’ at the intersection of Blues Point Road and Henry Lawson Avenue. This is manifest in the actual curve of the wall and the change in road surface between concrete and bitumen on the roadway.”

49. Ms Bhatti demurs and sets out her reasons at pp 5 and 8-9 of the joint report, including:

“…The proposed opening is in the escarpment along the northern side of Henry Lawson Avenue where historically there are no openings, introduces an uncharacteristic element that does not enhance the Henry Lawson Avenue streetscape nor the setting of the heritage items within its vicinity.”

…

“The creation of a vehicular access off Henry Lawson Avenue remains unacceptable particularly in regard to the physical and visual impact on the rocky outcrop and the landscape setting with Henry Lawson Reserve. The vehicular entrance will be visible from the public domain and undermine the contribution of the rock wall to the local heritage and landscape setting of Henry Lawson Reserve.”

…

“…The buildings that sit on top of the rocky outcrop including 3 Warung Street (I0515) and those at 5-9 Warung Street (I0516, I0517, I0418) do not characteristically nor historically have any direct link with Henry Lawson Avenue. Their connection with the street system remains from Warung Street. The proposed vehicular opening will alter this relationship as well as alter the character and function of the rocky outcrop that holds the evidence of the physical containment of the 1908 tram.”

…

“…The proposed opening will undermine the character and significance of the rocky outcrop as part of the collective and interrelated significance of the Blues Point Waterfront Group of items (I0423), the bus shelter (I0407) and the former tram turning circle and McMahons Point ferry wharf (I0452) reflecting the early history of public transport in the area. The proposal creates the potential to set a precedent for other openings in this rock cutting. The potential possibility of deep soil planting will not alter this impact.”

50. In his oral evidence, Mr Phillips emphasised that any heritage impacts created by the DA were “quite minimal” and noted that the sandstone cliff face and retaining wall is over 100m in length while the proposed intervention is relatively “quite small” and designed to impact the “smallest possible extent” of the wall. Additionally, he noted that the cliff face was generally oriented to the south, rendering it largely cast in shadow during the day, with a basement garage door recessed within the sandstone opening.

51. In her oral evidence, Ms Bhatti noted that the basement entry created a “permanent opening” in an otherwise uninterrupted extent of retaining wall and cliff face. She noted that the cliff face had long served as a “visual demarcation” between residential uses on top of the cliff and industrial uses at the bottom of the cliff and along the foreshore edge. In her view, the new basement opening would diminish this demarcation and hence impair its heritage significance.

52. Moving next to particulars (d), (e) and (f) which deal with adverse heritage impacts on nearby heritage items, the creation of an unacceptable precedent for similar interventions into the cliff face, and impacts arising from unacceptable design, bulk and scale of the DA. At p 10 of the joint report, Mr Phillips identifies the key features of the McMahon’s Point South HCA (which are also set out within Exhibit 3).

53. Drawing from text contained at Part C, Section 9.8.3 of the NSDCP, Mr Phillips sets out the relevant description of heritage significance:

“The McMahons Point South Conservation Area is significant:

For its connection to the early grant to William Blue and the Harbour crossing point at Blues Point, the early waterfront industry of Sydney Harbour, both of which can be interpreted by physical remnants.

As a mid 19th to early 20th century residential area with a mix of Victorian, Federation, 1920’s and 1930’s housing mixed with some Inter-war residential flat buildings.”

54. Mr Phillips then sets out his view at pp 10-11 that:

“The bulk, scale and height of the proposal responds well to the heritage context of the site.”

…

“With regard to the adjacent heritage item, the improved presentation of the existing building and the enhancement of planting adjacent to it will be of benefit to the item and its setting.”

55. Further, in discussing the merits of the proposed basement opening, Mr Phillips notes that the design:

“…would remove the concrete, some of the untidy brick, including a modern concrete block wall above. Inserted into this area would be a neat and well-designed sandstone [flat] arched entry. The significant elements of the wall, particularly the excavated sections of stone, would be enhanced by the proposed works.”

56. Notwithstanding Mr Phillips’ support for these attributes of the DA, Ms Bhatti maintains her position that:

“…from a heritage conservation point of view and with reference to the area character statement relevant to the site, the proposed development remains uncharacteristic within the McMahons Point South conservation area. The proposed opening in the escarpment along the northern side of Henry Lawson Avenue where historically there are no openings, introduces an uncharacteristic element that does not enhance the Henry Lawson Avenue streetscape nor the setting of the heritage items within its vicinity.”

57. In further oral evidence, Ms Bhatti elaborated on this point, noting that the scenic qualities of the adjacent public reserve serve to heighten its heritage significance and that the DA would result in increased traffic volumes in a particularly sensitive area.

58. Similarly, she noted that the proposed basement entry, cut into the cliff face and retaining wall, would establish an undesirable precedent that might be sought by other development proposals. She expressed a view that it would also impair the ability to read the heritage significance of the wall and cliff face as a cutting associated with the former tram service and offered limited heritage benefit through the removal of non-significant concrete elements of the existing wall.

59. Addressing particular (g), which deals with the objectives of cl 5.10 of the NSLEP and the specific jurisdictional test drawn from cl 5.10(4), Ms Bhatti consolidates her view at p 12 of the joint report as follows:

“…the proposal remains contrary to the objectives of clause 5.10 and approval will adversely impact on the environmental heritage of North Sydney creating an adverse impact on the heritage significance of the McMahons Point South heritage conservation area and the adjoining and neighbouring heritage items.”

60. Conversely, Mr Phillips, also at p 12 of the joint report, offers his view that the DA is consistent with the objectives of cl 5.10 and will not have an adverse impact on the HCA or adjoining heritage items.

61. Finally, the heritage experts address particular (h), which in turn deals with the relevant heritage controls set out at Section 13 - Heritage Conservation - of the NSDCP.

62. At page 13 of the joint report, the experts set out their disagreement with the suitability of the DA in meeting these controls, with Mr Phillips’ opinion being that for reasons already addressed in the joint report, the DA does meet the relevant objectives and provisions of the NSDCP, while Ms Bhatti’s her view that the DA does not.

63. Under cross examination, Ms Bhatti accepted that - given the properties at 3, 5, 7 and 9 Warung Street are each heritage listed single dwellings and are currently served by vehicle access points on Warung Street - it was less likely the proposed basement entry at the subject site would result in a replicable precedent.

64. Under further cross examination, Ms Bhatti accepted that the escarpment landform created by the site’s topography and the cliff face would remain as a result of the DA but stated that the “hole” created by the proposed basement entry would “undermine” its legibility as a cutting associated with the former tram service.

65. It was then put to Ms Bhatti that the DA - by virtue of its improved landscape treatment and removal of at-grade and undercroft car parking - would improve the contribution the subject site makes within the HCA. Ms Bhatti accepted this to a point, noting that the currently “uncharacteristic” building might become “neutral”, and also stated that the benefits attributable to this improved presentation are insufficient to “outweigh the dis-benefits” of the heritage impacts created by the basement entry.

66. Mr Phillips was taken to written heritage advice he had previously provided to the owner of the neighbouring property at 3 Warung Street and prepared in 2018 (tendered as Exhibit 7 in these proceedings).

67. Under cross examination, Mr Phillips accepted that this advice had been commissioned to consider the heritage merits and impacts of a potential basement entry at 3 Warung Street - similar to that being proposed in the subject DA.

68. It was put to Mr Phillips that the substance of his advice was that he did not support such a basement entry being created in the cliff face and retaining wall. Mr Phillips clarified that the heritage advice was provided as an assessment of the prospects of approval for a basement entry rather than for any heritage support of such an opening.

69. Mr Phillips emphasised aspects of his earlier oral evidence - in relation to the subject site - noting that in his view, any number of openings in the cliff face and retaining wall might be supportable on their merits. And that in the circumstances of this matter, the benefits of improving an existing “uncharacteristic” or “intrusive” building, including improved landscape presentation and the removal of at-grade and undercroft parking were sufficient to justify the intervention into the heritage fabric of the cliff face and retaining wall.

Findings

70. I now move to uphold the appeal. In deciding this course, I set out my reasons over the following paragraphs.

71. Firstly, it is appropriate to distil the contentions in this dispute to a single, threshold heritage issue:

1. Whether, pursuant to cl 5.10 of the NSLEP and on its merits, the DA conserves the environmental heritage of North Sydney, the HCA and heritage items in the vicinity of the subject site (Contention 1).

72. This test is central to my findings in this matter and ultimately represents the determinative factor. Upon satisfaction of this question, I would then be satisfied that each of the remaining contentions should fall away.

73. Specifically, if the DA were found to meet the test for conserving the environmental heritage of North Sydney then, based on the evidence before the Court, I find that I would also be satisfied that:

1. Contentions regarding foreshore scenic quality pursuant to Chapter 10 of SEPP Biodiversity - which are particularised in terms of the DA’s unsympathetic design within its urban context, resulting in a poor outcome that does not protect and enhance the scenic quality of the area - would be resolved by the merits of the DA.

2. Contentions regarding whether or not the DA is consistent with cl 1.2, Aims of Plan, of the NSLEP and the objectives of the Zone R3 Medium Density Residential land use would be resolved by the merits of the DA.

3. Contentions regarding whether or not the DA establishes an undesirable precedent, and whether or not the DA is in the public interest, would be resolved by virtue of the merits of the DA.

74. In the particular circumstance of this matter, I find that the DA has met the merit test for heritage conservation and consequently, the appeal may be upheld.

Heritage conservation

75. In both opening and closing submissions, there was some uncertainty raised as to whether the sandstone cliff face and retaining wall is a feature of the subject site and therefore situated only within the McMahons Point South HCA (CA14), or if it is also a feature of the Blues Point Waterfront Group (I0423) and therefore also a listed heritage item.

76. This uncertainty arises as a result of the limits of single line mapping in the NSLEP, where the cadastral boundary delineating the site from the adjacent Blues Point Waterfront Group cannot precisely reflect the detailed vertical and horizontal geometry of the cliff face.

77. The relevant heritage inventory sheet for the Blues Point Waterfront Group (forming part of Exhibit 4 in these proceedings) does not entirely resolve this uncertainty, despite the physical description of the item, which notes (with my emphasis added):

“The area encompassed in this listing covers all lands south of the cliff face that forms the northern boundary of Henry Lawson Drive, from the McMahons Point Ferry Wharf to the northernmost end of the public reserve on the western side of Blues Point, but additionally includes the public steps from the corner of East Crescent Street and Warung Street down to the McMahons Point Ferry Wharf.”

78. In a practical sense, this uncertainty was resolved in cross examination, when both Ms Bhatti and Mr Phillips gave oral evidence to the effect that their respective heritage opinions do not change should the cliff face and retaining wall be determined to be either a listed heritage item or a significant feature of the HCA.

79. I find with close reference to the site survey provided within Exhibit A that the cliff face and retaining wall is situated both partly within the subject site and partly within the Blues Point Waterfront Group.

80. I stop short though of determining whether this feature is a listed heritage item or a significant feature of the HCA, or indeed both.

81. Instead, for the purposes of determining this matter, I have adopted the more onerous test of heritage conservation, treating the entirety of the cliff face and retaining wall as though it were a listed heritage item.

82. The operative provision of cl 5.10(4) of the NSLEP, Heritage conservation, sets out that:

(4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned.

83. When considering the effect of the DA upon the heritage item I find that, on balance, the heritage impacts are acceptable.

84. In making this finding, I generally prefer the evidence of Mr Phillips, who accommodates a holistic view of heritage conservation and considers trade-offs, where heritage benefits attributable to the DA can be weighed alongside the heritage impacts that might accrue.

85. I find that the DA includes a number of attributes which serve to improve the site’s contribution to the conservation of environmental heritage in the vicinity. These include:

1. Alterations and additions, which renew an otherwise uncharacteristic building and generally improve its presentation and contribution to the local context to a least a state of neutrality.

2. The removal of existing at-grade and undercroft car parking and associated improved streetscape presentation within the HCA.

3. An increased extent of compensatory deep soil, landscape and planting to improve the streetscape presentation within the HCA.

86. I also accept that the heritage impacts attributable to the creation of a new basement entry into the cliff face and retaining wall are minimised to the greatest extent possible by:

1. A generally discreet design solution that minimises the extent of intervention, is neatly detailed in sandstone and with a recessed garage door receding from view.

2. Its general south-facing orientation, resulting in the proposed opening being cast in shadow for the majority of the day.

3. The proposed removal of non-significant concrete elements and existing sewer pipe to improve the presentation and clarity of the remaining cliff face and retaining wall.

4. The landscape design proposal, which will result in vegetation trailing down the cliff face and retaining wall, improving its general presentation from the public reserve.

87. I also note that heritage features listed in various statements of significance remain unaffected by the proposal, including the former tramway curve, kerbs and pavements, and the nearby listed bus shelter

88. Consistent with this line of reasoning, at p 6 of the joint report, Mr Phillips states:

“The proposed vehicular access has little or no impact on the scenic and environmental qualities of the site and its proximity to Henry Lawson Reserve and will have no impact on the historical evidence of the man-made wall that follows the line of the tramline that once serviced the area.

…

It is recognised that the hand cut sandstone wall to the northern side of Henry Lawson Avenue is important to the setting of the buildings above it and the heritage conservation area. The proposed opening is relatively small in relation to the expanse of the sandstone wall such that it will have a minimal visual impact. The benefit to the buildings above it and the heritage conservation area is derived from the enhanced planting created on the site through the reduction in hardstand areas surrounding the existing flat building on the subject site facilitated by the proposed basement carpark.”

89. Ultimately, on the question of the effects of the DA upon heritage items and areas, I prefer the evidence for the Applicant. Further, in the particular circumstance of this matter, I find that the DA results in an acceptable impact upon the retaining wall and cliff face whether they are held to be a listed heritage item or a significant feature within the HCA.

90. I also find that the reading of the cliff face and retaining wall, and its association with the former tram service will remain discernible from the public domain and will not perceptibly diminish the scenic qualities of the foreshore, harbour or local area.

Disposing of the matter

91. In moving to now dispose of the appeal before, I note this decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

92. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

93. As the DA proposes an exceedance of the relevant height of building development standard - which was not contested at the hearing - it falls to the Court to determine whether this proposed exceedance is acceptable.

94. In such an instance, cl 4.6(3) of the NSLEP requires consideration of a written request from the Applicant demonstrating that compliance with this 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.

95. Clause 4.6(4) of the NSLEP requires the consent authority to be satisfied the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

96. Additionally, cl 4.6(4)(b) of the NSLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter.

97. As required by cl 4.6 of the NSLEP, the Applicant has provided a written request (prepared by JVUrban Pty Ltd, dated 17 March 2023 and forming Exhibit D in these proceedings) seeking to vary the height of buildings development standard.

98. I am satisfied that this written request adequately justifies the proposed variance to the height of buildings development standard for the following reasons:

1. The DA exceeds the 8.5m height of buildings development standard, proposing a maximum height of 11.65m, which is 3.15m greater than the development standard, or a variation of approximately 37%.

2. Of relevance, the maximum height of building is attributable to a proposed lift overrun generally situated towards the centre of the site. The remaining upper-most roof level - given the site’s sloping topography - is situated at a height of approximately 11.5m along the southern facade line and approximately 8.3m towards the north-east corner of the site along Warung Street.

3. Aside from the proposed new lift overrun, the typical height of the roof is not proposed to increase from that currently evident on the site today - acknowledging that the extent of this existing roof is proposed to increase as a consequence of the proposed alterations and additions and will result in new building form situated in the north-eastern corner of the site in a location where it is otherwise generally consistent with the 8.5m height control.

4. The DA does not materially impact views of nearby properties. Affected properties to the north of the subject site have views already determined by the height of the existing building. As the extent of the existing roof extends to the north-east, I accept that views to the north will not be unreasonably impacted, while views toward the harbour bridge, its pylons and the city skyline will be generally retained with some relatively minor impact.

5. The protrusion above the existing roof height attributable to the lift overrun has been limited to 360mm, is situated towards the centre of the building and minimises the extent of any view impact.

6. The proposed height exceedance does not result in unreasonable overshadowing impacts off site, with any additional shadowing falling primarily on Henry Lawson Avenue and Henry Lawson Reserve. Minor additional overshadowing affects the neighbouring property at 3 Warung Street from 2pm on the winter solstice and affects a small number of windows addressing the common boundary.

7. The works associated with the DA will improve the presentation of the existing uncharacteristic building and result in a building which is agreed to be at least neutral in its contribution to the local area.

99. I note that when the Court granted leave to the Applicant to amend the DA on 25 November 2022, the Respondent’s earlier contention regarding the unacceptability of the proposed building height was resolved. The acceptability of the Applicant’s cl 4.6 written request was not contested by the Respondent during the hearing.

100. For these reasons, I am satisfied the DA meets the objectives of the NSLEP Zone R3 Medium Density Residential land use and also meets the objectives set out at cl 4.3(1) of the NSLEP.

101. As a result, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to the height of building and I find to uphold the written request.

102. I am satisfied that SEPP Biodiversity is a relevant environmental planning instrument and that (at the date relevant to this matter) the subject site is identified as land within the Sydney Harbour Catchment Map pursuant to s 10.2(1) of the SEPP and also identified as land within the Sydney Opera House Buffer Zone Map pursuant to s 10.56 of the SEPP.

103. Relevantly, s 10.18 of the SEPP sets out that:

The matters referred to in this Division (together with any other relevant matters)—

(a) are to be taken into consideration by consent authorities before granting consent to development under Part 4 of the Act.

…

104. Section 10.23 of the SEPP also sets out that:

The matters to be taken into consideration in relation to the maintenance, protection and enhancement of the scenic quality of foreshores and waterways are as follows—

(a) the scale, form, design and siting of any building should be based on an analysis of—

(i) the land on which it is to be erected, and

(ii) the adjoining land, and

(iii) the likely future character of the locality,

(b) development should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands, foreshores and tributaries,

…

105. Further, s 10.57 of the SEPP sets out that:

The matters to be taken into consideration in relation to development within the Sydney Opera House buffer zone include the following—

…

the need for development to preserve views and vistas between the Sydney Opera House and other public places within that zone,

the need for development to preserve the world heritage value of the Sydney Opera House,

the need for development to avoid any diminution of the visual prominence of the Sydney Opera House when viewed from other public places within that zone.

106. I find that, based on evidence dealing with the question of foreshore scenic quality, that the DA serves to maintain scenic qualities of the harbour primarily due to the discernible improvement the proposal will have over the existing building as it presents to the harbour and foreshore, and as a result of the acceptable nature of heritage impacts arising from the new basement entry.

107. I am also satisfied that the DA preserves views and vistas to and from the Sydney Opera House and results in no diminution of the visual prominence of the Sydney Opera House when viewed from public places within the buffer zone.

108. Consequently, I find that the DA satisfies the relevant test established by SEPP Biodiversity.

109. For these reasons set out above, I now move to uphold the appeal and grant consent to the DA.

Orders

110. The Court orders that:

1. The Applicant’s written request, pursuant to cl 4.6 of the North Sydney Local Environmental Plan 2013 (NSLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the NSLEP, is upheld.

2. The appeal is upheld.

3. Consent is granted to Development Application DA379/21 for the partial demolition of an existing residential apartment building, excavation and construction of a basement, new basement entry, construction of new apartment additions above and alteration of the remaining apartments at 1 Warung Street, McMahons Point, subject to the conditions of consent at Annexure A.

4. The exhibits, other than 2, 5, 6, A, B and D, are returned.

M Pullinger

Acting Commissioner of the Court

Annexure A

Architectural Plans

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Decision last updated: 28 June 2023