Karimbla Properties (No.56) Pty Ltd v The Council of the City of Sydney

[2018] NSWLEC 1301

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Karimbla Properties (No.56) Pty Ltd v The Council of the City of Sydney [2018] NSWLEC 1301
Hearing dates:	28, 29 May 2018
Date of orders:	29 June 2018
Decision date:	29 June 2018
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The orders of the Court are: (1)   The appeal is upheld. (2)   Concept development application (D/2017/1201) for indicative land subdivision and building envelopes for three buildings above a podium and carparking at 811 Elizabeth Street Zetland, and associated indicative land uses, is approved, subject to the conditions of consent at Annexure A. (3)   The exhibits, other than exhibits 6 and B, are returned.
Catchwords:	DEVELOPMENT APPLICATION: Green Square - Concept development application – Floor space bonus – design quality
Legislation Cited:	City of Sydney Act 1988 Environmental Planning and Assessment Act 1979 Green Square Town Centre Development Control Plan 2012 State Environmental Planning Policy No 55 —Remediation of Land Sydney Local Environmental Plan (Green Square Town Centre—Stage 2) 2013
Cases Cited:	Segal & Anor v Waverley Council [2005] NSWCA 310
Category:	Principal judgment
Parties:	Karimbla Properties (No.56) Pty Ltd (Applicant) The Council of the City of Sydney (Respondent)
Representation:	Counsel: C McEwen SC and S Nash (Applicant) I Hemmings SC (Respondent)   Solicitors: Meriton Group (Applicant) Council of the City of Sydney (Respondent)
File Number(s):	2017/331377
Publication restriction:	No

Judgment

1. The appeal is against the deemed refusal of a concept development application (D/2017/1201) for building envelopes for three buildings above a podium and various associated concepts at 811 Elizabeth Street, Zetland. The subject land is located within the Green Square redevelopment precinct, and the proposal is subject to statutory and procedural planning processes developed for this precinct. The application is classified as “major development” for the purposes of the City of Sydney Act 1988, which places the Central Sydney Planning Committee as the consent authority. With the commencement of these proceedings, the Court takes on the functions of the consent authority.

The proposal

2. The proposal occupies a total area of some 9771m2 and is bound on the eastern side by Elizabeth Street and Joynton Avenue and on the western side by Portman Street. The proposed Zetland Avenue, a future significant thoroughfare for Green Square, will form the southern boundary. Leave was granted for the plans before the Court in this hearing on 25 May 2018 (after a history of some prior amendments in the lead-up to the hearing). The plans before the Court seek development consent for concept subdivision and building envelopes for indicative uses and building storey heights as follows:

• A building envelope for a “ground floor” podium and a single basement level below. Both the basement and ground level would be mostly used for car parking, with vehicle access from Portman Street. The parking would be “sleeved” by ground floor retail uses to the future Zetland Avenue and residential land uses to Elizabeth Street, Joynton Avenue and Portman Street.

• A building envelope to the future Zetland Avenue, with a height of between seven and fifteen storeys and residential land uses to all levels (Building A)

• A building envelope to Elizabeth Street and Joynton Avenue with a height of seven storeys and residential uses to all levels (Building B)

• A building envelope facing a future shared laneway between Elizabeth and Portman Streets (which will form the development’s northern boundary), with a height of between three and six storeys and residential uses to all levels (Building C), and

• Indicative subdivision of the site, including an area of 1,220 square metres to be dedicated as part of the future Zetland Avenue and an area of 612.7 square metres on the north-western portion of the site to be dedicated as the shared laneway between Elizabeth Street and Portman Street.

3. The amended plans were accompanied by indicative drawings, demonstrating that buildings can be provided within the proposed envelopes.

The site

4. The site is legally described as Lot 1 in DP 808432. It is located on the south-eastern edge of the Green Square Town Centre in the suburb of Zetland. Green Square train station is located 300-400 metres to the north-west of the site.

5. The site is located towards the northern end of the large block bounded by Merton Street to the north-west and Hansard Street to the south-west. The Green Square plans would break this block with the future Zetland Avenue road reservation, part of which would run along the southern boundary of the subject site.

6. The topography of the site slopes down from the north-west in a south-westerly direction, dropping approximately 1.8m, between RL 20.04 AHD to the north-western boundary and RL 18.27 AHD to the south-western boundary. Council indicates there are approximately 41 mature and semi-mature trees located within and in proximity to the site, predominantly located along the street frontages and side boundaries of the site. The site currently accommodates a vehicle sales premises and vehicle repair station, with ancillary offices and open at-grade car parking storage areas, predominantly located on the southern portion of the site. The site is not identified as being a heritage item or located in a heritage conservation area in any environmental planning instruments.

Site surrounds

7. The surrounding area contains a diverse mixture of land uses and built forms.

8. The areas to the immediate north-west and north-east of the site are located within the ‘Zetland Estate’ heritage conservation area (HCA) and contain, predominantly, one and two storey Victorian and Federation-era terrace houses. These areas retain an R1 General Residential zone. Opposite the site, on the north-eastern side, is the Elizabeth Street Reserve, an area of public open space.

9. To the east and south-east of the site, on the opposite side of Joynton Avenue, are Woolwash Park, several residential flat buildings and future construction areas, including for intended future public open space and community facilities, including an aquatic centre and playing fields.

10. To the south of the site is the former Royal South Sydney Hospital site at 3 Joynton Avenue, which is currently being redeveloped as a community and cultural precinct. The evidence indicated a public school has been announced for this area.

11. To the south-west of the site on the opposite side of Portman Street is a construction site at 95, 95A and 97-103 Portman Street that will form part of the future Zetland Avenue and The Drying Green, an area of public open space. To the west of the site is a vacant development area.

Submissions from objectors

12. Three objectors spoke from the site during the view. A fourth objector spoke from in front of her home at Portman Street adjacent to the site’s northern boundary (also adjacent to the proposed future laneway). Each of the speakers demonstrated good levels of familiarity with the recent history of the Green Square redevelopment and its documented ambitions. I would synthesise the objector concerns as follows (the substance on the objection is elaborated upon below):

1. The shared access corridor between the site and Zetland HCA

2. Building C and transition to Zetland HCA

3. Building A’s height and the relationship with land to the south

4. Linking the proposed development with its surrounds (the permeability of the development)

5. Joynton Avenue pedestrian planning and safety

6. Remediation and construction stages

7. Overall design quality

8. Procedural issues.

Planning framework

Statutory setting

13. The site is zoned B4 Mixed Use under Sydney Local Environmental Plan (Green Square Town Centre—Stage 2) 2013 (hereafter referenced as the LEP). The proposed mixed use development is permissible with consent in the zone.

14. The LEP has established site specific height of building controls for the site as follows which have some intricacy to them but may be summarised as follows: RL 22 (AHD) to the future Zetland Avenue and northern laneway, 69.3 (AHD) to the envelope adjacent to the future Zetland Avenue, RL 44 (AHD) to the envelope across the majority of the site, and RL 35.3 (AHD) to the portion of the envelope adjacent to the northern shared laneway.

15. The LEP provides a maximum floor space ratio (FSR) development standard of 2.31:1, but cl 6.9(7) of the LEP provides that a future detailed design development application (ie beyond the current concept application) is eligible to exceed the maximum FSR by up to 10%, if the design of the new buildings is the winner of a competitive design process and the consent authority is satisfied that the buildings exhibit design excellence.

16. There are a number of heritage items within the wider locality, including the former Royal South Sydney Hospital site somewhat to the south. As indicated above, the site is located directly adjacent to the Zetland Estate HCA.

17. In the LEP the site is identified as: having Class 5 Acid Sulphate Soils, as being a Flood Planning Area, as being subject to active street frontage controls to parts of the frontage to Portman Street and the future Zetland Avenue, and as being subject to parking limitations.

18. The Green Square Town Centre Development Control Plan 2012 (DCP) also brings forward many provisions including in regard to: desired future character, infrastructure, land uses, building layout form and design, environmental management, transport and parking. The provisions are relevantly referenced below.

“Concept development applications” - procedural issues

19. It is section (s) 4.22 of the Environmental Planning and Assessment Act 1979 (Act) which provides particulars in regard to concept development applications. It provides relevantly as follows:

4.22 Concept development applications

(1)   For the purposes of this Act, a concept development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for the site or for separate parts of the site are to be the subject of a subsequent development application or applications.

…

(4)   If consent is granted on the determination of a concept development application, the consent does not authorise the carrying out of development on any part of the site concerned unless:

(a)   consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or

(b)   the concept development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent.

The terms of a consent granted on the determination of a concept development application are to reflect the operation of this subsection.

(5)   The consent authority, when considering under section 4.15 the likely impact of the development the subject of a concept development application, need only consider the likely impact of the concept proposals (and any first stage of development included in the application) and does not need to consider the likely impact of the carrying out of development that may be the subject of subsequent development applications.

20. Having regard to s 4.22(4) of the Act (above), this application, of itself is not seeking consent to authorise the carrying out of development. Any development requires the need for further consent.

Design excellence

21. Clause 6.9 of the LEP introduces particular provisions to encourage design excellence. Provisions of relevance include:

6.9 Design excellence

(1)    The objective of this clause is to deliver the highest standard of architectural and urban landscape design.

(2)   This clause applies to development involving the erection of a new building or external alterations to an existing building.

(3)   Development consent must not be granted to development to which this clause applies unless the consent authority is satisfied that the proposed development exhibits design excellence.

(4)   In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following:

(a)   whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b)   whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain,

(c)   whether the proposed development detrimentally impacts on view corridors,

(d)   how the proposed development addresses the following matters:

(i)   the suitability of the land for development,

(ii)   existing and proposed uses and use mix,

(iii)   heritage issues and streetscape constraints,

(iv)   the location of any tower proposed, having regard to the need to achieve an acceptable relationship with the other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,

(v)   bulk, massing and modulation of buildings,

(vi)   street frontage heights,

(vii)   environmental impacts such as sustainable design, overshadowing, visual and acoustic privacy, wind and reflectivity,

(viii)   the achievement of the principles of ecologically sustainable development,

(ix)   pedestrian, cycle, vehicular and service access and circulation requirements including the permeability of any pedestrian network,

(x)   impact on, and any proposed improvements to, the public domain,

(xi)   impact on any special character area,

(xii)   appropriate ground level public domain interfaces,

(xiii)   excellence and integration of landscape design.

…

(7) If the design of a new building, or an external alteration to an existing building, on land is the winner of a competitive design process and the consent authority is satisfied that the building or alteration exhibits design excellence, it may grant development consent to the erection of the new building, or the alteration to the existing building, with a floor space ratio that exceeds the maximum floor space ratio shown for the land on the Floor Space Ratio Map by up to 10%.

(8)   In this clause: competitive design process means an architectural design competition, or the preparation of design alternatives on a competitive basis, carried out in accordance with the City of Sydney Competitive Design Policy.

22. In this instance the application is seeking to achieve the additional 10% floor space available under cl 6.9(7) and as such the stated intents are that a competitive design process will be followed, with the preparation of a competitive process brief an initial step. The content of the brief for the future competitive design process, and considerations for future detailed development applications, were factors in the assessment of this concept development application by the experts, and were prominent factors in the agreed without prejudice conditions of consent.

Issues before the hearing

23. In accordance with the Court’s Practice Notes, the respondent consent authority (in this case the Council) is required to identify matters that it contends should cause the Court, in exercising the functions of the consent authority, to refuse the application or impose certain conditions. These contentions represent contested issues between the parties and typically become the central point of focus in a hearing.

24. As a consequence of the dialogue processes between the parties leading to this hearing, the Council’s position is that the amended plans and the suite of accompanying (without prejudice) conditions, developed between the experts, essentially address Council’s contentions. That is, Council is not now pressing any contentions based on the amended plans and without prejudice conditions. Here Council also indicated it was mindful of the limitations on matters requiring assessment in concept development applications (s 4.22(5) of the Act, reproduced above).

25. The Council’s view is that the concept application, which has evolved in the dialogue leading to the hearing between the parties and among the experts, is now able to be approved. The experts involved in the hearing should be mentioned for the record. The applicant’s experts were: Mr Matthew Benson (planning), Mr Simon Parsons (urban design) and Mr John Boers (heritage). The Council’s experts were: Mr Kerry Nash (planning), Mr Ken Baird (urban design) and Mr Tony Smith (heritage).

26. Concept application approval would position the proponents to move ahead with the next procedural stages for a proposal for this site. This process, as described above, involves the drafting of the competitive process brief and the design excellence competition process, with the preparation and evaluation of detailed development proposals to follow.

27. Land and Environment Court proceedings are adversarial proceedings and, subject to certain caveats, the Court is generally bound to evaluate matters that are contested (Segal & Anor v Waverley Council [2005] NSWCA 310). In this instance the matters raised by objectors are considered as contested issues and will provide the focus of the rest of the judgement. The issues, I have indicated above, as comprising the objector concerns, are now addressed in turn (with the exception of the submissions querying overall design quality, which are considered in the findings).

The shared access corridor between the site and Zetland HCA

28. Earlier plans had indicated an intention for motor vehicle to access site parking from the shared access corridor between the site and the Zetland HCA. The applicant’s plans show an alternative vehicle access arrangement into the site off Portman Street. Council has now confirmed agreement with this aspect of the application. A condition has been agreed as follows:

The proposed new laneway linking Elizabeth and Portman Street is to be for the purpose of shared bicycle and pedestrian use only. Vehicle access is to be limited to emergency vehicles only.

29. This response seems to me to address the concerns raised by objectors of the risk that this corridor would be used as a “rat run” by motor vehicles, decreasing its potential as a community space and to otherwise bring direct amenity effects, including to the residents to the immediate north.

Building C and transition to Zetland HCA

30. The objectors were concerned about the transition between the proposal and the adjoining Zetland HCA. Here there is a need to appropriately account for heritage considerations, but also general visual amenity and privacy concerns about the interface. The preference from objectors was for a townhouse style development facing out onto the future pedestrian/cycle laneway.

31. Prior to the most recent plan amendments, Council’s urban design and heritage experts also had concerns about this relationship. There was a view that the contrast between the proposed development and the low-scale development in the HCA was “too sharp”. The subsequent amendments, and ultimately the agreed conditions by the experts, provide for a set of responses to this design challenge. The responses are either provided in the envelope plans or by way of conditions of consent, as “requirements” for inclusion in the “competitive design process brief and subsequent detailed design development application”. These include: (1) provision for a three storey street level podium to the future laneway (the DCP allows for four storey podium), with the six storey element (supported via the height controls) setback 9m from the new laneway; (2) provision of a 9m x 9m “notch” to Building C’s three storey streetwall to the laneway, with provision of deep soil to allow for a substantial tree in this spot. This notch is positioned at the extension of the line or axis of Christie Lane (Christie Lane acts as the rear lane for Portman and Elizabeth Streets), (3) provision of agreed conditions requiring the “articulation” of this visual breaking of Building C at the upper levels (agreed Condition 6).

30. I note that in coming to their position of agreed support for these changes the experts are aware that that the DCP provides for a building break at the extension of Christie Lane. The façade concept for Building C, including the “notch”, is seen to in part address the objectives behind this building break, while improving the internal design, including in regard to the communal open space and solar access.

31. In addition, potential privacy concerns for residences within the Zetland HCA have been addressed by an agreed condition (6(b)), as follows:

The design of the north-western facade of Building C must have regard to maintaining the privacy of the properties fronting Elizabeth and Portman Streets to the north-west of the site, via the use of landscaping and architectural treatments.

34. Having considered the objections, I am satisfied that the position now agreed by the experts in regard Building C’s transition to Zetland HCA is satisfactory.

Building A’s height and its relationship with land to the south

35. The concern from the objectors is that approval of the envelope, as proposed, for Building A would impact on the amenity of the public domain and community land south of the future Zetland Avenue. Overshadowing is the key concern.

36. A notable issue in the evaluation of this concern is that, for “Building A”, there is a difference between the height development standard contained within the LEP and the DCP’s height provisions (DCP provides for up to three fewer storeys).

37. The manner in which the question of overshadowing of the areas to the community lands to the south has been resolved between the experts in this case is to rely on the design excellence process to provide a layer of sensitivity to the final built form arrangement. As indicated in agreed Condition 9 below, the approach combines a to this instance, it is notable that the agreed conditions propose an approach whereby further efforts to minimise overshadowing of public areas (both by design and more precise modelling) are promoted as an element of the design competition process:

(9) SUN ACCESS MODELLING

The design competition brief must include a requirement that each competitor explore a series of design options in the massing and modulation of building, consistent with approved envelopes in their competition entries, in order to minimise overshadowing of the public domain, community facilities and public open spaces adjacent to and in proximity to the site.

Detailed design drawings and diagrams are to be submitted with the detailed design Development Applications providing precise sun access modelling of overshadowing of the public domain, community facilities and public open spaces adjacent to and in proximity to the site.

38. The suggestion in the evidence was that participants in the competition may take up the opportunity to liaise with relevant Department of Education staff or agents to integrate the final building design with the future school design.

39. While it is not the case that there is any obligation to consent to a development which entirely fills, say, a building height development standard contained within an LEP, it is the case that an LEP is required to be given more weight than a DCP in such matters (see s 4.15(3A) of the Act). In parallel to this, the building envelope approvals which might be secured in this concept application, do not define the floor space or final built form of future buildings.

40. Mindful of the LEP height controls, I am satisfied that the position adopted in the agreed conditions satisfactorily addresses the concerns raised by objectors in regard to solar access to the existing and proposed community buildings to the south.

Proposed development’s linkages with its surrounds

41. The objectors were concerned about the development’s integration with the local setting. The provision of carparking at the ground level of the development (albeit generally sleeved with commercial and residential development at the street façade) restricts the permeability of the development. This might be described as the “flow” (visual if not physical) between outside activity (within the wider area) and activity within the site. The DCP does not nominate the site as one where ground level parking might occur. It also suggests openings to the public domain with its depiction of broken blocks of building footprints (DCP Figure 6.5).

42. Mr Parsons (urban design expert for the applicant) argued that the proposal brings other benefits over the DCP in terms of its relationships with the locale. He contended that the previous plan prioritised Christie Lane as a key connection corridor. This prioritisation was seen by him to be misplaced as there was no real “desire line” along Christie Lane. Mr Parson’s argues that the proposal now provides a much more substantial pedestrian level benefit with an improved east-west corridor now limited to shared pedestrians and cyclists (without motor vehicles). The reduced storey to the streetwall at new laneway (when compared to the DCP) was also relevant here. He also emphasised the viewlines available to the large internal community open space area as one walks down Portman Street from the north into the larger communal open space area on site.

43. At the hearing I raised a concern about the spatial relationship between public domain and the opening to the site off Portman Street (in the vicinity of the site’s parking access point). It was submitted by the experts that such issues would be natural points of attention in any design competition. However an additional condition (to be addressed in the competitive design process brief and subsequent detailed design development application) was agreed as follows:

(6)(k) Exploration of enhanced physical and visual connectivity between the proposed communal open space at podium level and adjacent streets.

44. A further concern raised by the objectors was with future encroachments beyond the indicated building envelopes. As I understand it one of the issues here was the suggested 0.45m areas for “architectural expression” indicated along street facades in the envelope plans. These notations have been taken off the plans, however it is noted that the DCP still allows areas for architectural feature projection (see Joint Expert Report Exhibit 2, p7). The conditions include provisions for building setbacks in accordance with the DCP (see conditions 6(e) and (f).

45. For the reasons indicated I am satisfied with the expert’s position in regard to the proposal’s linkages with its surrounds.

Joynton Avenue pathways and pedestrian safety

46. Joynton Avenue seems likely to be subject to much higher levels of pedestrian activity with not only the subject development but also the significant scale of community and other activity which was expected in the site surrounds. The plans gave little attention to this issue. That is there was no special consideration to suggest a higher standard of pedestrian pathway for Joynton Avenue.

47. At one level I have sympathy with submissions at the hearing that this was not a matter requiring attention in the assessment of the concept application. That would suggest that the future planning for pedestrian activity in the site vicinity would be resolved by the relevant planning authority as future development proceeds. Nonetheless the matter was given some examination in the hearing. It was indicated from survey plan reference that there was a distance available of some 3m between the kerb line and property boundary along the site in the Joynton Avenue vicinity. The application made no provision to increase this, nor where there any submissions from Council to suggest this needed to occur.

48. It was however pointed out that the building setback along the Joynton Avenue corridor provided potential value here. That is, Mr Hemmings indicated that it could be expected that the existing 3m for pedestrian access would be sufficient for hardstand pedestrian use, but there was capacity to “borrow” (in a conceptual sense), landscape area usually falling within a public road reservation, from the site, as part of a perceived walkway corridor.

49. I am satisfied from Mr Hemmings’ submissions that there is scope for safe pedestrian passage in the footway and for the building setback areas to augment the relatively narrow width which is available. More generally I am satisfied from the plans indicated for the future Zetland Avenue that there is capacity for safe pedestrian access to the community precinct to the south.

Site remediation and construction stages

50. Site remediation requirements in accordance with State Environmental Planning Policy No 55 —Remediation of Land are factored into the agreed conditions. Construction stage issues would be appropriately attended to with the detailed development applications.

Procedural concerns

51. I note the objectors concerns about the changes which seem to have occurred over time with the plans for Green Square. It seems to me this is at least in part to be expected as this large project moves from the abstract to the concrete, so to speak. With regard to the communication with residents of the amendments which have occurred to this particular proposal in the more recent past, it seems to me that these amendments are to a considerable extent responses to the objections which were initially raised, including by local residents. In addition it seems to me reasonable efforts at communication were made as the final details of envelope plans were resolved between the parties, and the respondent made efforts to provide the comments from objectors (on the most recent changes to the proposal) to the Court for consideration in the final judgement.

Findings

52. I agree with the submissions from objectors that the site, as an eastern gateway to Green Square, warrants design excellence. It seems to me that the envelope plans and agreed conditions, as drafted, position future development on this site to meet this design challenge, mindful of cl 6.9 of the LEP. As indicated above I am also satisfied that the other issues raised by objectors have been satisfactorily addressed.

53. I accept the agreement of the planning, urban design and heritage experts, and the Council’s submission, that it is satisfied with the concept development application. I am satisfied that consent can be granted to the concept development application to allow the planning and development processes for this component of the Green Square precinct to continue on its path.

Orders

54. The orders of the Court are:

1. The appeal is upheld.

2. Concept development application (D/2017/1201) for indicative land subdivision and building envelopes for three buildings above a podium and carparking at 811 Elizabeth Street Zetland, and associated indicative land uses, is approved, subject to the conditions of consent at Annexure A.

3. The exhibits, other than exhibits 6 and B, are returned.

____________

P Walsh

Commissioner of the Court

Annexure A (107 KB, pdf)

Amendments

02 July 2018 - Correction made to representation

11 July 2018 - Pursuant to UCPR 36.17, the slip rule, by consent of the parties Annexure A is amended.

Decision last updated: 11 July 2018