Kavia Holdings Pty Limited v City of Sydney
[2004] NSWLEC 21
•01/29/2004
Land and Environment Court
of New South Wales
CITATION: Kavia Holdings Pty Limited v City of Sydney and anor [2004] NSWLEC 21 PARTIES: APPLICANT
Kavia Holdings Pty LimitedFIRST RESPONDENT
SECOND RESPONDENT
City of Sydney
Potts Point and Kings Cross Heritage Conservation Society Inc
.FILE NUMBER(S): 10389 of 2003 CORAM: Brown C at 1 - Moore C at 1 KEY ISSUES: Development Application :-
Demolition and heritage issues
Requirement to readvertise amended plans
Views
Neighbour amenity
.LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
South Sydney Local Environmental Plan 1998
South Sydney Development Control Plan 1997
City of Sydney Public Consultation Development Control Plan 2003
.CASES CITED: Kavia Holdings Pty Limited v Sydney City Council [2003] 127 LGERA 293;
Zhang v Canterbury City Council [2001] 115 LGERA 373;
.DATES OF HEARING: 27 and 28 January 2004 DATE OF JUDGMENT: 01/29/2004 LEGAL REPRESENTATIVES:
APPLICANT
Mr B Preston SC with Mr J Robson, barristers
INSTRUCTED BY
Aubrey F Crawley & CoFIRST RESPONDENT
SECOND RESPONDENT
Mr A Galasso, barrister
INSTRUCTED BY
PricewaterhouseCoopers Legal
Ms F Sinclair, barrister
INSTRUCTED BY
Environmental Defenders Office
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
10389 of 2003
Brown C
Moore C
29 January 2004
Applicant
v
City of Sydney
First Respondent
Potts Point and Kings Cross Heritage Conservation Society Inc
Second Respondent
Introduction
1 The present proceedings are an appeal pursuant to 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of a development application to construct a residential apartment building at 22 – 24 Macleay Street, Potts Point (“the site”). The original development application was lodged with South Sydney Council on 25 October 2002 and the appeal commenced in the Court on 8 April 2003. On 8 May 2003, the locality which includes the site was transferred from South Sydney Council to the City of Sydney (“the council”). However, as part of the transitional planning arrangements, the application remains to be determined under the South Sydney planning instruments (except with respect to notification - as discussed elsewhere in this judgment).
2 On 30 July 2003, Pain J granted leave, pursuant to s39A of the Land and Environment Court Act 1979, to the Potts Point and Kings Cross Heritage Conservation Society Inc the society to be joined as a party to the proceedings as the second respondent: see Kavia Holdings Pty Limited v Sydney City Council [2003] 127 LGERA 293; NSWLEC 195.
3 On 19 December 2003, the applicant was permitted to amend the application by submitting new plans which had the effect of deleting one floor level from that which had originally been proposed.
4 The hearing commenced with a view of the site and the surrounding locality being undertaken by the Court in the company of representatives of the parties and a number of objectors. A number of Apartments owned by objectors or representative of the outlook of concern to the objectors were inspected during the course of this view. Evidence of these objectors was taken informally during the course of the view and notes taken of this evidence by the solicitor for the applicant were subsequently tendered.
5 At the commencement of the second day at present hearing, Mr B Preston SC, senior counsel for the applicant, sought leave, by consent of both respondents, to a further amendment to the plans which had the effect of deleting a further floor level from that which had originally been proposed. Leave was granted for this amendment.
6 The consequence of these two amendments is that the council indicated its preparedness to enter into consent orders on the basis of a set of conditions which had been agreed to between the applicant and the council. The society, however, maintains its original position that the local heritage significance of the buildings presently on the site warrants refusal of consent to demolish those buildings. Ms Sinclair, counsel for the society, also submitted that, if the Court were otherwise minded to approve the development in its amended form, a number of changes should be made to the conditions which had been agreed to between the applicant and the council. Essentially, the changes sought to these conditions dealt with providing a greater role for the society in the management of heritage issues which would arise in the course of undertaking the development.
7 In addition, a number of the resident objectors maintained their objections.
Advertising the amended plans
8 After leave was granted to the amendment of the plans, the threshold issue arose as to whether or not it was necessary to advertise the amended plans to enable public consultation processes to be followed with respect of these amendments. Mr Galasso, counsel for the council, tendered a copy of the City of Sydney Public Consultation Development Control Plan 2003. This document was approved on 18 August 2003 and commenced operation on 3 September 2003, both dates being after the date of the transfer of the site's locality to the City of Sydney. Thus, this development control plan applies to the amended application. The plan deals with the issue of amended applications in cl 8.1 which reads, relevantly:
Amended applications that result in a reduction in the environmental impacts of a development proposal are not required to be readvertised or renotified.When an application is amended prior to its determination, the application shall be readvertised or notified (as appropriate in terms of the provisions of this DCP) when the amended application is considered likely to result in additional environmental impacts.
9 The council's position is that the amendments to the plans have only beneficial environmental consequences and thus fall within the positive exclusion quoted immediately above. This position is, obviously, supported by the applicant. Ms Sinclair, on behalf of the society, submitted that the amended plans should, nonetheless, be readvertised. She did not point to any instrument or general principle that would require this to occur.
10 We are satisfied that the council's position that the amended plans will have only beneficial environmental consequences is an accurate one. In conformity with the provisions of the DCP set out above, we are also satisfied that readvertising is not appropriate or required.
Issues in the proceedings
11 Although several formal statements of issues were filed, the issues actually dealt with are discussed below.
Evidence
12 Although a variety of formal statements of evidence were tendered in the proceedings and informal oral evidence was taken from objectors during the course of the view (as noted above), no formal oral evidence was taken. In addition, many of the formal statements of evidence became redundant in light of the amendments to the plans. However matters raised by Mr Woodhouse's statement of evidence, on behalf of the society, dealing with the issue of retention of the existing buildings together with the conclusions by Mr Smith on this matter remain relevant to the issues requiring to be determined. In addition, a number of documents which were tendered on behalf of objectors dealt with issues which remained in contention and are discussed below.
Matters pressed by the society
13 Two principal matters remain pressed by Ms Sinclair on behalf of the society. The first of these relates to the demolition of the building and the society's submission that the social and heritage significance of the existing buildings warranted their retention. In support of this submission, Mr Woodhouse's statement of evidence noted that the subject site is an item of local individual heritage significance. In this context, it is not listed as having heritage significance on any statutory register nor in any study commissioned by the council or its predecessor. However, it is so recorded by the society and Mr Woodhouse considers that it also makes a contribution to the heritage conservation area of which it forms a part.
14 Mr Woodhouse also concluded that the proposal would have a negative impact on Elizabeth Bay House and on the McElhone Reserve. Mr Woodhouse concluded that, overall, the demolition of the existing buildings should not be permitted. A number of maps, plans and a chronology were tendered on behalf of the society to provide an appreciation of the historical, physical and social evolution of the buildings on the site. Mr Woodhouse's conclusions, relevantly, were:
An understanding of the term “Integrity” is fundamental to understanding the significance of buildings. Their aethetic [sic] value and contribution to the Heritage Conservation Area and streetscape are not compromised to such an extent that they are not still “largely intact”.The buildings, known as the subject site, have the historical, social aesthetic and archaeological significance. Although there have been modifications to both buildings they retain their formal and overall integrity in heritage terms.
15 The position advanced on behalf of the society concerning streetscape issues is not supported by the heritage consultants for the council or the applicant. In essence, their position is that whilst there are some modest elements of the fabric of the present buildings which may assist in a cultural appreciation of the site, these do not warrant prohibition of the demolition of existing buildings. The council has proposed, and the applicant has agreed to, a number of consent conditions relating to conservation and interpretation of materials which are appropriate to be recovered as part of the demolition process together with the encouragement of the interpretive reuse on site or heritage recycling of such recovered material. The position of the society is that, if demolition is to be permitted by the Court, it accepts the broad thrust of the council's conditions on these matters but seeks amendments to them to provide participation by the society in the processes. These matters relating to conditions are discussed later in this judgment.
16 Elizabeth Bay House is a major item of built heritage which is located to the south east of the site. It is considerably lower than the site as the site is located on the Macleay Street ridgeline. The position initially put on behalf of the council, by its heritage consultant, Professor Weirick, was that the gap in the skyline occasioned by the present low scale of development on site was important and should be retained. This provided, in his assessment, an important part of the backdrop to Elizabeth Bay House.
17 It was obvious from the view that the built form surrounding Elizabeth Bay House (both in the immediate vicinity and along the Macleay Street ridgeline) is considerably higher than that of the heritage building. This backdrop dominates it. The gap which is afforded by the site is, as an element of this background – particularly the Macleay Street ridgeline background, comparatively minor and its retention or removal, in our assessment, would not make a significant difference to the context within which Elizabeth Bay House will be perceived (either from its immediately adjacent environs or, as was examined on the view, from Onslow Ave to the south). We are not satisfied that such impact as might occur as a result of the erection of the proposed building according to the further modified plans warrants refusal on this basis. With respect to this conclusion, we note that the council, by its preparedness to enter into consent orders, no longer maintains the objection arising from the evidence of Professor Weirick and, by necessary conclusion, must support the proposition that the (now proposed) impact on Elizabeth Bay House is acceptable.
18 The relevant provisions of the South Sydney Local Environmental Plan 1998 are contained in cl 24 which reads:
- The consent authority must not grant consent to development on land in the vicinity of a heritage item, a heritage conservation area, a heritage streetscape area, an archaeological site or a potential archaeological site unless it has considered an assessment of the impact the proposed development will have on the heritage significance, curtilage and setting of the heritage item, on the heritage significance of buildings within the heritage conservation area, or on the heritage significance of the streetscape within heritage streetscape area or the actual or potential archaeological site, as well as the impact of the development on any significant views to or from the heritage item, heritage conservation area or streetscape.
19 In the context of this provision, we are satisfied, from the view, that, although there is an impact on the views to the west from the Elizabeth Bay House precinct, this impact is minor and would not warrant refusal. Similarly, we do not consider that the proposed development will have other than an extremely minor impact on the setting of Elizabeth Bay House and will have no impact on its curtilage. Finally, we consider that the proposal will have little or no impact on the conservation area as a whole.
20 We have therefore concluded that the society has not established any sufficient basis for rejection of the demolition element of the application.
- Matters pressed by the objectors
21 Separate matters pressed by the objectors related to view and amenity loss from the Macleay Apartments and loss of amenity to apartments at 20 Macleay Street - the property immediately to the north of the site.
22 As a consequence of the amendments to the plans, the building no longer exceeds the 24 m height requirement for this portion of Macleay Street in anything other than a de minimis fashion. Although the amended floor space ratio of 3.19:1 exceeds the permitted 3.0:1 for the site, the South Sydney Development Control Plan 1997 contains provisions permitting bonus floor space rationup to .25:1 to be awarded if compensatory works are undertaken in the public domain. Much, if not all, of the exceedance is derived from additional car parking spaces proposed for the basement areas thus not making any significant contribution to the bulk scale height of the proposed building. The council considers that an appropriate case for the enlivening of the bonus floor space provisions has been establishedand has provided for the compensatory works in the public domain in the proposed conditions of consent. Effectively, for the purposes of our consideration, the council has conceded that the proposed building should be treated as a compliant one. The society did not submit to the contrary.
23 Many of concerns of the objectors relating to loss of views, overshadowing or loss of airflow are ones which will arise if there is to be any significant redevelopment permitted on the site where such redevelopment is within the building envelope allowed for by the planning instruments. We accept that, if the proposed building were a noncompliant one, greater weight would be given to the residents concerns about these impacts. However, consistent with the decision of the Court of Appeal in Zhang v Canterbury City Council [2001] 115 LGERA 373, we have taken the provisions of the development control plan as the starting point for our consideration of these matters. The impacts on the views from Macleay Apartments arise as a consequence of the construction, on the Macleay Street frontage, being proposed as a boundary to boundary facade. When questioned on this by the Court, it was indicated that the expert advisers to both the applicant and the council considered that this was the appropriate design for this frontage to be consistent with the streetscape -particularly the streetscape to the north. We are satisfied, on the basis of this evidence, that boundary to boundary construction on the Macleay Street frontage is the appropriate design response to this portion of the streetscape. We are reinforced in this view by the condition proposed by the council and accepted by the applicant which will lead to a redesign of the ground level presentation to Macleay Street incorporating an area of retail or commercial space in lieu of some of the otherwise mechanical presentation contained in the original design.
24 With respect to issues of airflow, the proposed design preserves, for a significant portion of the site to the rear of the facade elements, a 3 m setback from the side boundary on each side up to the penthouse and plant room levels where greater setbacks are provided. In the context of the neighbouring developments, the airflow issues to 20 Macleay Street are of greater weight than those of the Macleay Apartments. The Macleay Apartments are a tower building atop a podium with a substantial setback between the site and the tower of the Macleay Apartments as the Macleay Apartments’ driveway runs along the south of the common boundary. In terms of conventionally accepted airflow ventilation standards, there is no basis to reject or seek further modification to the proposed design when assessed against any impact on the Macleay Apartments. A more difficult issue arises with respect to impact of this nature on the residents of 20 Macleay Street on the southern side. These residents have a modest airwell on their own property and will have the benefit of the 3 m setback proposed for the site. Although the impacts will be of some significance on these residences, we are satisfied that they are not of such significance as to warrant rejection or the requirement for an increase in northern setback on the site. Indeed, they are a natural consequence of the council’s planning controls.
25 However, at the suggestion of the Court, a privacy screen has been added to the level 1 deck on the northern side of the proposed building in order to ameliorate some of the possible privacy impacts on the residence at 20 Macleay St.
26 A further objection was put by Ms Casey, a resident of an apartment at the front of 20 Macleay St concerning construction impacts on her. These are matters which will arise and require to be dealt with for any redevelopment of the site and are appropriately dealt with in the council's conditions of consent.
27 Overall, therefore, we are satisfied that there is no basis for refusal or requirement of modifications of the proposed design as a consequence of the impacts of the proposed building on either its northern or southern neighbour.
Conditions in contention
28 No conditions remain in contention between the council and the applicant. However, the society proposed a number of amendments to the council's conditions which Ms Sinclair submitted should be adopted. As noted above time, these are primarily addressed to giving the society a role in the archaeological and heritage aspects of the demolition and subsequent construction. The society also proposed, although not in written form, that Part A Condition 1 should be amended to provide that two retail or commercial tenancies should be provided at the Macleay Street ground level frontage with one of them to be located on each side of the entrance foyer.
29 The proposed amendments to the archaeological and heritage conditions seek changes to council conditions 11, 50, 51 and 52.
30 The change that the society seeks to condition 11 would require that the society being informed in the event that historical or Aboriginal relics were discovered which warranted cessation of work pursuant to the appropriate statutory provisions. The applicant opposed this amendment to the condition on the basis that it would simply provide a complicating factor and that the information was proposed to be provided to body which had no statutory duties in this area. It is the uncontradicted submission of the society that its 310 members have subscribed to objectives supporting the preservation of the heritage values in the locality of the site. Although the society has no statutory role, we do not consider it unreasonable, given the way these proceedings have unfolded, that the applicant should be obliged to inform the society in terms of the amendments sought by the society to condition 11. This change has been incorporated in the conditions contained in annexure A to the orders in these proceedings.
31 With respect to condition 50, the society sought three substantive changes. The first was that the interpretation strategy for the site should be prepared and implemented in conjunction with the society. The second was that any interpretive display be located in the entrance foyer of the building incorporating a representative sample of heritage elements salvaged from the fabric of the site. The third was that an amount equivalent to no less than 0.2 percentum of the total value of the building should be allocated to the interpretation strategy and the display.
32 In response to this proposition, the applicant was asked its view on a possible amendment to the condition that would require that a copy of the interpretation strategy for the site be provided to the society at the time of its submission for approval to the Director of City Development. The applicant indicated that it would be prepared to accept such an amendment to condition 50.
33 Although we are satisfied that the society has a genuine and substantial interest in the heritage of the locality, in general, and of the site in particular, we are not satisfied that it is appropriate to give the society such a substantive role in the development of the strategy. The strategy, itself, will necessarily deal with the question of the scope and location of any interpretive display together with the amount to be allocated to the implementation of such a display. As a consequence, we are satisfied that it is appropriate that the society have the opportunity to make submissions to the Director of City Development prior to adoption of any interpretation strategy by the council. We consider that the appropriate way to do this is to provide, as the applicant indicated would be acceptable, that a copy of the interpretation strategy should be provided to the society at the time of its submission to the council. This change has also been incorporated in the conditions contained in annexure A to the orders in these proceedings.
34 The amendments sought to condition 51 would require that, where possible, heritage fabric salvaged from the site should be actively reused on the site. The position of the applicant with respect to thisproposed amendment was to reject it on the basis that it was unlikely that any heritage material salvaged from the site would be appropriate for adaptive reuse on the site. This may or may not be the case. The defect which we perceive is fatal to the proposed amendment is the use of the words where possible. Such words in conditions of consent are inviting of future argument and potential litigation. It is clearly the intention of the legislative framework for planning that consents should be final and certain. Had the council or the society proposed a mechanism for consultation about adaptive reuse, different issues might have arisen. However, in the context of the present proposed amendment, we do not consider that it would do other than create a potential for unnecessary future disputation. It may well be that some appropriate mechanism can be included in the interpretation strategy and that is a matter which can be pursued by the society when it has seen that strategy. We are not satisfied, however, that the amendment to condition 51 proposed by the society is workable and therefore it should not be incorporated.
35 With respect to condition 52, the society proposes two amendments. The first is that the term “an experienced Conservation Architect” be deleted from the clause and placed with “a Registered Heritage Specialist” in the various references made to the person to be commissioned pursuant to this condition. No reason of substance was advanced by the society in support of this proposal and, absent some compelling argument as to why this change should be made to a condition agreed between the council and the applicant, we are not prepared to agree to this request.
36 The second element of the society’s submissions concerning this condition would require the person commissioned pursuant to the condition to consult and advise the society with respect heritage conservation matters where appropriate. It is possible, as submitted by the applicant, that to give this person such a role would result in a conflict of interest between the person’s obligations and responsibilities to the applicant and any obligation to advise the society which might be created by such an amendment to the condition.
37 Whilst it is probably invidious for Mr Woodhouse for us to do so, we note that he, as the president of the society, is qualified and experienced as a heritage adviser and he is, presumably, available to the society on some form of pro bono basis in future, it is something which we do note as not leaving the society without any opportunity for advice on these issues absent us imposing a requirement on the applicant to provide such advice to the society. We are persuaded by the submission of the applicant that the potential for conflicts of interest is real and should be avoided. We have therefore concluded that it is not appropriate to impose this second amendment to condition 52.
Conclusion
38 Having considered all of the issues pressed by the society and by the resident objectors, we are satisfied that there is no basis to withhold consent to the plans now submitted for approval.
Orders
39 The orders of the Court are, therefore, with the consent of the applicant and of the first respondent:
- The appeal is upheld;
- Development application DA U02 – 01189 for the demolition of existing buildings and the subsequent construction pursuant to plans numbered DA 01B, DA 03B, DA 04B, DA 06B, DA 07B, plot date 27 January 2004, and DA 02A, DA 04B, plot date 12 December 2003 prepared by Ercole Palazzetti of a residential apartment block at 22 – 24 Macleay Street, Potts Point is determined by the granting of development consent subject to conditions in Annexure A; and
- The exhibits, other than exhibits J and N, may be returned.
Graham Brown
Commissioner of the Court
Commissioner of the Court
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