Jo Hancock Investments Pty Limited v Sydney City Council

Case •

[2016] NSWLEC 1334

•

12 August 2016

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Jo Hancock Investments Pty Limited v Sydney City Council [2016] NSWLEC 1334
Hearing dates:21 April and 1 August 2016
Date of orders: 12 August 2016
Decision date: 12 August 2016
Jurisdiction:Class 1
Before: Morris C
Decision:

Appeal upheld

Catchwords: CONSENT ORDERS: impact on adjacent properties
Legislation Cited: Sydney Local Environmental Plan 2012; State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development;
Texts Cited: Sydney Development Control Plan 2012; Residential Flat Design Code; Apartment Design Code
Category:Principal judgment
Parties:

Jo Hancock Investments Pty Limited (Applicant)

  Sydney City Council (Respondent)
Representation:

Counsel:
Ms J Reid (Applicant)
Mr P Clay (Respondent)

  Solicitors:
Pikes & Verekers (Applicant)
Ms J Mort, Sydney City Council (Respondent)
File Number(s):151622 of 2016

Judgment

  1. Jo Hancock Investments P/L (Hancock) lodged Development Application D/2014/1955 with Sydney City Council seeking consent to amalgamate 2 adjoining sites, demolish an existing three storey building and construct a new part 7 and part 6 storey residential flat building containing 32 apartments and parking for 10 vehicles and alter and add to an existing building to create 2 separate apartments.

  2. The Council has refused consent and Hancock is appealing its deemed refusal.

  3. Following an earlier conciliation conference, joint conferencing between experts and discussions between the parties, the applicant amended its proposal and was granted leave to rely on amended plans by the Court. As a result of the amendments made, the Council no longer presses its contentions and the Parties are seeking Consent Orders from the Court.

The site and its context

  1. The site comprises two adjoining properties, Lots 1 and 2 in DP83575 (103 to 105 Palmer Street) and Lot 1 DP 605523 (107 Palmer Street) and is located on the western side of Palmer Street Woolloomooloo between William and Cathedral Streets. The site also has a secondary frontage to Faucett Lane and has a combined area of 529.5 m². There is a fall across the site south to north of approximately 1.3 m.

  2. A three-storey inter-war building of masonry construction occupies 103-105 Palmer Street, built to the front, rear and side boundaries. The ground floor of the principal facade is asymmetrical with five stepped courses of face brick work surrounding the main entrance. The upper storeys of the primary facade are symmetrical, and feature a vertical brick fin extending along the central projecting bay. The pitched skillion roof clad in corrugated steel is concealed behind a parapet.

  3. A two-storey Victorian terrace house, constructed of rendered masonry and currently in use as a single dwelling, occupies the site at 107 Palmer Street. The terrace is the end terrace in a row of three, and is setback from the street by a sandstone retaining wall with iron palisade fence above. The terrace house occupies approximately 50% of the allotment on which it is located with the rear portion predominantly hard paving and used for car parking.

  4. Surrounding development comprises a mix of residential and commercial land uses. Adjoining the site’s northern boundary at 101 Palmer Street is a two storey Federation terrace house constructed of painted brickwork with skillion roof concealed behind a high parapet. Further north on the corner of Palmer Street and Turner Lane is 93-99 Palmer Street, a two storey mixed use residential and commercial building constructed of rendered and painted masonry with a pitched gable roof.

  5. At 107-111 Palmer Street (including part of the subject site) is a row of two-storey Victorian terrace houses.

  6. Badham Street, which abuts the southern end of the terrace row from 107-111 Palmer Street, is a pedestrian thoroughfare and is closed to vehicular traffic.

  7. Occupying the block to the south of the site at 113-125 Palmer Street, between Badham Street and Robinson Street is a residential development known as ‘The Diplomat’ comprising three townhouses of two storeys and an eight storey apartment building with basement car parking. Further south is large scale commercial development concentrated along William Street.

The planning controls

  1. The site is zoned B4 Mixed Use under the Sydney Local Environmental Plan 2012 (LEP). The proposed use is permissible with consent.

  2. The key numerical controls from the LEP are a floor space ratio (FSR) control of 3:1; a maximum building height of 22 m; a maximum number of car parking spaces permitted for the site of 16 including five visitor/service parking. Other controls in Sydney Development Control Plan 2012 (DCP) provide for a maximum storey control of six storeys with a Street frontage height control of two storeys to Faucett Lane.

  3. The site is located within the Woolloomooloo Conservation Area (C71). Both of the existing buildings contained on the site are identified in the Council’s development control plan as contributory items. Pursuant to clause 5.10(4) of the LEP, the consent authority must consider the effect of a proposed development on the heritage significance of that conservation area.

  4. As the application was lodged with the council in 2014, the provisions of the now superseded State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP65) and the associated Residential Flat Design Code (RFDC) apply to assessment of the application.

Background and the proposal

  1. The development application was lodged with the Council on 17 December 2014 and consent was refused on 29 June 2015.

  2. The proposal now before the Court seeks consent for site amalgamation of 103-105 and 107 Palmer Street; alterations and additions to the terrace house at 107 Palmer Street to create two apartments; demolition of the existing contributory building at 103-105 Palmer Street and the construction of a new five storey residential apartment building containing 19 apartments with a basement area providing storage cages, 31 bicycle parking spaces and toilet and building services with a lift access to the remaining levels of the building. Communal open space with an area of 80 m² deep soil landscaping, as proposed in the south-western corner of the site at ground level.

  3. The extent of changes is detailed on page 4 of the joint expert report, Exhibit 3. The main changes are the reduction in the number of apartments from 32 to 21, the gross floor area from 1815.1 m² to 1334.52 m² and building height from 22 m (seven storeys) to 16.8 m (five storeys), deletion of car parking and the provision of communal open space at ground level rather than on the rooftop. Other changes involved increased setback, changes in materials and balcony treatments, reconfiguration of units to improve the amenity and changes to dormer windows, balustrading and balconies.

  4. The amended plans provide for a maximum building height of 16.68m which is well below the 22m maximum provided under the LEP and a FSR of 2.55:1, also less than the 3:1 maximum permitted.

The issues

  1. The contentions in the case, have, as the result of the amendments made to the plans, addressed all of the council’s contentions in the case as detailed in the council’s Statement of Facts and Contentions, Exhibit 2. The manner in which the contentions have satisfied the council is detailed in the Expert Report of the council’s Planner Ms R Thompson, Exhibit 3.

The evidence

  1. The Court visited the site and the locality on the first day of the hearing and also inspected adjacent properties, Nos 101, 109 and 111 Palmer Street and Unit 31, 113-125 Palmer Street and heard evidence from the owners/representatives of owners of those properties.

  2. In response to the amended plans, the owner of No 109 provided further evidence in Court on the second day of the hearing. He conceded the amended plans provided for an improvement to the impact of the development on his property however remained concerned about the overshadowing of the lower level terrace area at the rear of his property and the view loss caused by that portion of the building that caused that overshadowing. He requested that the development be further reduced so as to provide at least 2 hours sunlight to the lower terrace area and considered that the necessary changes to the building to facilitate that would also address his concerns regarding view loss. He was satisfied his initial concerns regarding privacy had been addressed.

  3. Further written submissions in response to the amended plans were received by the council and these were included as Attachment A to Exhibit 3. These issues relate to overshadowing, view loss, privacy, poor access to bicycle parking, lack of car parking, borrowed amenity from the neighbouring site due to insufficient setbacks and inconsistencies with the Apartment Design Code (ADC).

  4. Expert evidence was heard from Ms Thompson and Mr L Adey for the applicant.

  5. They agreed that the proposed development satisfied the DCP provisions for sunlight access to the adjacent property No 109 Palmer Street because at least 2 hours sunlight would be provided mid-winter to 8sqm of the upper rear terrace of that property between 9am and 3pm. In addition, Mr Adey advises the front terrace, although having minimal dimensions, is directly accessible from the living area of the dwelling and would receive morning sun.

  6. The experts also agreed that through further amendments to the plans, by providing additional information in relation to the treatment of the walls, windows and openings around the central, northern light well and reducing the extent of the lift overrun/plant room structure, so that it is raked rather than horizontal, the impacts of the development on view loss from the lower levels of the apartment building to the south would be further reduced and would provide for the retention of the water glimpses currently available. They agree that the development, with these amendments would retain the iconic and panoramic views available from those units.

  7. The applicant offered to amend the plans to reflect this agreement and those plans were filed with the Court on 3 August 2016.

  8. It was also agreed that the development, if approved would not adversely affect the development potential of the property to the immediate north of the site.

Conclusion and findings

  1. Having regard to the evidence and particularly the detail provided in Exhibit 3, I am satisfied that the amended plans satisfactorily address the council’s contentions in the case and are compliant with the relevant LEP development standards and also satisfy the relevant provisions of the DCP. Where there are variations from the controls contained in SEPP65 and the RFDC, I accept the expert’s evidence that these variations are, in the circumstances of the case, acceptable. That is particularly due to the fact that the design of the apartments maximise the usable floor space through the lack of hallways and enjoy the use of balcony areas.

  2. In relation to the issues raised by objectors, I note that the property to the south has three balcony or terrace areas in addition to the rear ground level backyard area currently used for parking. The upper terrace area will, based on the evidence before me, receive a minimum of 2 hours afternoon sunlight to at least 8sqm of that space thereby satisfying the DCP control.

  3. With the additional details now provided, I am satisfied that the development would not prevent any redevelopment of the site to the north and that the impact of the development on views from the apartments to the south is acceptable. The building is considerably lower than the maximum building height permitted under the LEP, at 5.32m less that the control provides for and, whilst appropriate in the circumstances of the case, is a significant departure from the development standard. In addition, the FSR of the development is also, appropriately, less than the LEP control, in response the circumstances of the site. In the circumstances of the case, the development as proposed is responsive to the constraints of the site that prevent achieving the maximum density provided under the planning controls.

  4. I am therefore satisfied that the proposal is lawful and complies with or satisfactorily achieves the objectives of the relevant planning controls and merits consent.

  5. There being on reason why the Consent Orders should not be made, by consent, the Orders of the Court are:

  1. The Applicant is granted leave to rely on the amended plans as detailed in condition 1 to Annexure A.

  2. The Applicant shall pay the Respondent’s costs thrown away as a result of amending the development application as per Order 1, pursuant to s97B of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

  3. The appeal is upheld.

  4. Development application No. D/2014.1955 lodged with Sydney City Council on 17 December 2014 for:

  1. Amalgamation of 107 and 103-105 Palmer Street;

  2. Demolition of the existing 3 storey building at 103-105 Palmer Street and construction of a new 5 storey residential flat building containing 19 apartments and basement storage level; and

  3. Alterations and additions to 107 Palmer Street to create 2 separate units.

  4. is approved subject to the conditions contained in Annexure A.

  1. The exhibits, other than exhibits A and 2, are returned.

______________________

Sue Morris

Commissioner of the Court

151622.16 Morris (C) (305 KB, pdf)

151622.16 Morris - Plans (1.85 MB, pdf)

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Decision last updated: 12 August 2016

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