Maxida International Alexandria Property Australia Pty Ltd v City of Sydney Council

[2022] NSWLEC 1180

Land and Environment Court

New South Wales

Medium Neutral Citation:

Maxida International Alexandria Property Australia Pty Ltd v City of Sydney Council [2022] NSWLEC 1180

Hearing dates:

24-25 May, 12 July, 20-21 October 2021, final written submission was made on 21 March 2022

Date of orders:

5 April 2022

Decision date:

05 April 2022

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

Proceedings 2020/291179

See orders below at [96].

Proceedings 2020/207341

See orders below at [97].

Catchwords:

DEVELOPMENT APPLICATIONS – two development applications subject to an approved concept development application – early works development application for demolition, excavation and remediation – detailed design development application for eight mixed use buildings and associated works – impacts on amenity enjoyed by Sydney Park users – impacts on Sydney Park natural ecosystems – site suitability – compatibility with nearby 24 hour industrial operations – design excellence

Legislation Cited:

Contaminated Land Management Act 1997

Environmental Planning and Assessment Act 1979, ss 4.15, 4.22, 4.24, 4.46, 8.7

Environmental Planning and Assessment Regulation 2021, cl 29

Roads Act 1993, s 138

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development

State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, cll 2.119, 2.121

Sydney Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 5.21, 6.21, 6.21C

Water Management Act 2000

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118

Maxida International Alexandria Property Australia Pty Ltd v City of Sydney Council [2022] NSWLEC 1139

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Apartment Design Guide

NSW Department of Planning, Development near Rail Corridors and Busy Roads - Interim Guideline, (2008)

Category:

Principal judgment

Parties:

Maxida International Alexandria Property Australia Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
D Miller SC (Respondent)

Solicitors:
Mills Oakley (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2020/291179 and 2020/207341

Publication restriction:

No

Judgment

1. COMMISSIONER: These appeals are brought by the applicant under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). They follow the refusal by the consent authority of two development applications over land with the street address of 205-213 and 215-225 Euston Road, Alexandria (site).

2. The consent authority in this instance is the Central Sydney Planning Committee, with City of Sydney Council (Council) the respondent in regard to the appeal proceedings. Under s 39(2) of the Land and Environment Court Act 1979 (LEC Act), the Court has power to exercise the consent authority function in disposing of this appeal.

3. The two development applications the subject of this judgement are introduced as follows:

• Proceedings 2020/291179 - appealing the refusal of a development application for what is described as “early works” (early works DA). The early works DA seeks consent for demolition of existing structures on the site, site excavation and remediation. Council’s file reference for the early works DA is D/2018/718.

• Proceedings 2020/207341 - appealing the refusal of a DA for detailed design (detailed design DA). The detailed design DA seeks consent for the construction of eight mixed use buildings, comprising residential apartments, office and retail uses, basement levels including for parking. Council’s file reference for the detailed design DA is D/2018/907.

Background

Concept development application

4. The site is the subject of an approved concept development application, pursuant to s 4.22 of the EPA Act. In accordance with the related provisions, a concept development application sets out concept proposals for the development of a site. Consents to concept development applications do not of themselves authorise the carrying out of development. Detailed proposals for development of the particular site would be the subject of subsequent development applications. Under s 4.24(2) of the EPA Act, when a consent for a concept development application for a site is in force, subsequent determinations (in regard to development applications for detailed proposals) “cannot be inconsistent with the consent for the concept proposals for the development of the site”.

Recent modification to approved concept development application

5. The approved concept development application for the site has been the subject of a recent modification application, referenced by Council as D/2016/989/C. The modification application was the subject of a recent appeal heard before me (proceedings 2022/17116). In Maxida International Alexandria Property Australia Pty Ltd v City of Sydney Council [2022] NSWLEC 1139, I found favourably in regard to proceedings 2022/17116. Modifications to the approved concept development application’s building envelope plans and conditions of consent resulted from this decision. Henceforth I will refer to the approved concept development application (as modified) as the concept approval.

Design excellence and competitive design process

6. Condition 5 of the concept approval requires that a competitive design process be undertaken in accordance with the provisions of Sydney Local Environmental Plan 2012 (SLEP), and that the “detailed design of the development must exhibit design excellence in accordance with Clause 6.21 of Sydney Local Environmental Plan 2012”. A competitive design process, as required of Condition 5 of the concept approval, has been undertaken. The Competitive Design Alternatives Report in relation to this competitive design process was tendered into evidence as Ex GGGG. The winning design was prepared by Silvester Fuller MHNDU and Sue Barnsley Design. Silvester Fuller MHNDU has prepared the architectural drawings for the modification application and Sue Barnsley Design has prepared the landscape scheme for the detailed design DA. That is to say, the winning design architects and landscape architects have been a party to the finalisation of the detailed design DA.

Interaction between experts

7. There has been a considerable amount of systematic exchange between the numerous experts involved in these matters, in what seems to me to have been an effort to address the requirements of s 4.22(2) of the EPA Act. That is to say, the case management effected in these proceedings, essentially by the parties themselves, has facilitated a process of exchange both within and across disciplines to come to points of agreement in regard to the two development applications before me here and their alignment with the concept approval. It is notable that the creators of the winning design competition scheme (see [6]) have been a party to this interaction. Ultimately, this process of exchange between experts, and consequent iteration of plans, came to the point where the experts across disciplines were able to reach agreement that the ultimate proposals before the Court addressed the contentions raised by Council, and warranted conditional approval in regard to both the appeals before me here.

8. Nonetheless these proceedings remain a contested hearing. In closing submissions, Council pointed to the fact of the large number of objecting submissions, which among other matters I will give attention to below.

Site and setting

9. I acknowledge my reliance on the Statements of Facts and Contentions (SoFaC) filed by Council in regard to these two appeals for the following descriptive material. The final amending SoFaCs, in regard to the early works DA and detailed design DA, were each filed on 3 September 2021 and tendered into evidence as Ex 20 and Ex 27, respectively.

10. The site is legally identified as Lots 110 and 111 in DP 883295. It has an area of some 21,029m² and is approximately rectangular in shape (with the exclusion a rectangular block towards the south-east corner). The site sits on the western side of Euston Road and has a 178m (approx) frontage to it. The site depth is 112m (approx). The other three site boundaries all generally abut Sydney Park. The site is relatively flat and sits lower on its northern and western sides than the adjacent parklands.

11. The site currently contains two large warehouse buildings and is accessed by two driveways from Euston Road. The site has a history of past contaminating uses including a gasworks and metal manufacturing.

12. Sydney Park is a 40ha open space area which contains wetlands, green open spaces, trees, pathways and playgrounds. It is described in the Sydney Park Plan of Management as having “a diverse ecosystem, historical sites and extensive parklands”. Other nearby land uses are predominantly industrial.

13. Euston Road is being upgraded as part of the NSW government’s ‘WestConnex’ project with three lanes of traffic in each direction. The WestConnex St Peters interchange is nearby. There are 70,000 vehicles a day forecast to use Euston Road once WestConnex is fully operational.

14. Across Euston Road is the Alexandra Canal locality within an area designated by Council as the “Southern Employment Lands”, and identified for its growing strategic economic role in supporting Sydney Airport-related activities and more generally. Existing industrial premises nearest to the site, mostly on the eastern side of Euston Road, include three concrete batching plants operating 24 hours per day, along with manufacturing and distribution centres. See air photo at Figure 1.

Figure 1 - Surrounding context 2020 aerial photo – site outlined in red (Source: Exhibit 1 p 7)

Proposals

Early works DA

15. Ex 20 describes the early works DA, as now before the Court, as follows (pars 9 and 16):

“a) Demolition of the existing part 2 and 4 storey buildings, concrete carpark and associated infrastructure.

b) Site stabilisation works, including excavation, sheet piling and installation of an impermeable barrier wall. The proposed excavation matches the basement proposed under the refused under D/2018/907.

c) Tree removal.

d) Remediation works, including installation of impermeable barrier, excavation, offsite disposal and construction of a tanked basement.

e) Erection of 2.5m high type A hoarding structure to Euston Road and 2.1m high type A hoarding structure to the remainder of the park.”

Detailed design DA

16. The architectural plans for the detailed design DA were tendered into evidence as Ex JJJ, with landscape plans tendered as Ex KKK. I paraphrase from Ex 27 (pp 26-38) to provide the following description of the detailed design DA:

• Provision of eight mixed use buildings comprising 356 residential apartments, two basement levels, ground level and basement offices and ground floor retail spaces.

• Four buildings would front Euston Road and wrap around the north-east corner of the site (Buildings A, B, C and D). See Figure 2 for site layout. These are referred to as the 'Euston Road buildings'. An additional four buildings would splay from the centre of the site westward towards the boundary with Sydney Park (Buildings E, F, G and H). These are referred to as the 'Parkside buildings'.

• An internal plaza area with play space, landscape and artistic features is proposed between the Euston Road buildings and Parkside buildings. Retail tenancies and a communal pool, proposed in the Euston Road buildings, face west into the plaza. Generally, office space fronts Euston Road in these buildings.

• Apartment mix would comprise 5 x studios, 72 x single bedroom 201 x two bedroom and 78 x three bedroom.

• Buildings A, B and C (fronting Euston Road) are of six storeys height. They would be connected via fixed acoustic glass infills sitting between the buildings. A metal “landscaped veil/wavy screen” would present along the front eastern elevation of Buildings A, B and C. The metal veil acting as a trellis base for landscaping.

• The Euston Road buildings are connected via a walkway at the rooftop level that bridges breezeways located between Buildings A, B and C. The Euston Road buildings include a communal rooftop space accessed from lifts in Buildings A and B and inaccessible green roofs and mounds to lift overruns. Building D wraps around the north-east corner of the site and has a frontage to Euston Road and Sydney Park.

• The Parkside buildings are to a maximum of seven storeys but with staggered height, lower towards Sydney Park. Each building also contains two storeys of commercial uses, at their very eastern end, adjoining the internal plaza. The roof contains raised tree planters, inaccessible green roof planting and photovoltaic panels. The buildings would be separated by deep soil areas and landscaping, increasing towards the west and the park.

• Vehicle access to basement parking is via a deceleration lane off Euston Road then left-in left-out driveway at the north-eastern part of the site. There would also be a left turn only egress at the south-eastern end of the site.

Figure 2 - Building layout (source: Exhibit 27 p 27)

Contentions

17. At the commencement of the proceedings, and at the point of the initial filing of Ex 5 and Ex 3 (SoFaCs in regard to the early works DA and detailed design DA respectively), numerous contentions were raised by Council in relation to these matters.

18. In relation to the detailed design DA, contentions were raised in regard to:

1. Inconsistency with the concept approval;

2. Building height;

3. Non-demonstration of design excellence (including in regard to: (a) architectural, urban and landscape design, (b) inadequate consideration of acoustics for proposed apartments and public space, (c) pedestrian and cyclist safety);

4. Suitability of the site for the development (including in regard to (a) external noise, (b) flooding and stormwater implications);

5. Interface with Sydney Park, including in regard to impact on trees and fencing;

6. Interface with Euston Road, including in regard to deceleration lane arrangements and consequent effects on the public pathway;

7. Internal separation arrangements between buildings;

8. Acoustics and natural ventilation;

9. Waste management.

19. Council also drew attention to the numerous lay submissions objecting to the overall proposal.

20. In relation to the early works DA, Council originally raised concerns in regard to the fact that demolition would result in a long term visual impact and was premature (given no consent was expected in the shorter term for detailed development). While there were some particulars which received attention via expert evidence, in particular in relation to conditions of consent ultimately agreed between the parties, it is fair to say that Council’s key concern in regard to the early works DA was related to the determination of the detailed design DA. Council saw fault in approving the early works DA until there was a resolution of the detailed design DA. It will be seen that the rest of the judgement is mostly concerned with the detailed design DA. I come back to the early works DA towards the end of the judgement as I draw my conclusions.

21. As indicated earlier, by the conclusion of the hearing of evidence, and by which time there were substantial further amendments to the detailed design DA and further information provided in relation to the early works DA, all of the matters which had earlier been in contention in relation to each of the two appeals were resolved to the satisfaction of the experts. That is to say, Council no longer pressed nominated contentions with expert evidence. There is an exception in regard to Contention 15 in relation to the detailed design DA and Contention 3 in relation to the early works DA (“development is not in the public interest”). Council associated this contention, in relation to both matters, with the extent of objecting submissions made in regard to the proposal.

Expert evidence

22. The experts providing written or oral evidence in these proceedings were as indicated below.

Expert	Expertise	Engaged by
Ms C Swan	Town planning	Applicant
Ms S Robinson	Town planning	Respondent
Mr N Dickson	Urban design	Applicant
Ms J Pressick	Urban design	Respondent
S Barnsley	Landscape	Applicant
K Yates	Landscape	Respondent
R Lamb	Visual	Applicant
D Dhaciou	Flooding	Applicant
V Russo	Stormwater	Applicant
L Collier	Flooding and stormwater	Respondent
O Gaussen	Acoustics	Applicant
R Tonin	Acoustics	Respondent
A Morse	Traffic	Applicant
S Briant	Traffic	Respondent
P Castor	Arboriculture	Applicant
G Walsh	Arboriculture	Respondent
M Burke	Natural ventilation	Applicant
T Rofail	Natural ventilation	Respondent
W Potter	Environmental health	Respondent
S McMahon	Planning	Respondent

Objecting submissions and issues arising

23. The main point of attention in regard to objecting submissions was the detailed design DA. However, objecting submissions were generally against the land conversion process, in toto. In that sense many of the objections are also applicable to the early works DA. The proposal was notified three times with objecting submissions as indicated below (Joint Report of the Town Planning and Urban Design Experts, filed 23 September 2021, Ex 28 p 6):

• Notification #1 - Original (24 August 2018 - 24 September 2018) - 68 submissions;

• Notification #2 – Amendment 1 (13 Apri12021- 11 May 20271- 21 submissions;

• Notification #3 – Amendment 2 (13 - 28 August 2021) - Four submissions.

24. Council provided copies of written objecting submissions and I have taken them into consideration along with a number of oral submissions made directly to me and heard during the course of the hearing in Court on 21 October 2021. I can reasonably synthesise these lay objections down to the following topics:

1. Community planning and infrastructure, including suggested public acquisition of the site for incorporation into Sydney Park and associated strategic open space and community services and facilities provisioning concerns.

2. Impacts upon amenity enjoyed by patrons of Sydney Park, including building height, visual impact, overshadowing, light spill, direct access between the park and the site.

3. Impacts on Sydney Park’s natural ecosystems both at the immediate boundary and more generally.

4. Relationship with Euston Road and existing and future nearby industrial operations.

5. Design excellence considerations and related matters.

Community planning and infrastructure including acquisition of land for Sydney Park inclusion

25. A common theme in the public objections was that the site should not be developed for housing purposes but should instead be added to Sydney Park. The site was required as part of a “green lung” in the face of the intensity of development and traffic volumes now, and anticipated into the future (mindful of WestConnex). There was also a concern with the availability of the various community facilities and human services the additional population (ie moving into the anticipated development) would require.

26. I am not persuaded by these submissions. No proposals for the acquisition of the site for open space purposes have been put before the Court. The site has been part of a planning process, relating to its conversion from industrial to a mixed use residential scheme, for a number of years. Conversion of sites of this kind to assist in addressing Sydney’s housing accommodation requirements are part of the greater metropolitan area planning process. This process includes considerations relating to community facilities and human services requirements.

Incompatibility with, and impacts upon, Sydney Park and the enjoyment of users

27. At the centre of the concerns raised on this topic was that experiences in Sydney Park would be adversely affected by the proposal. New buildings would “sky-line” above existing vegetation when viewing from a number of areas within the park, including some well used pathways, destroying the sense of tranquillity. The eventual building massing would be an eyesore affecting the enjoyment of the park. A key issue here is the height of the proposed buildings (which breaches the SLEP building height standard). There was also a concern that some existing trees, which bring about some screening of the site at present, would be at risk as a consequence of the proposed development.

28. Below, a consideration of the contravention of SLEP’s building height standard is undertaken (see [60]-[84]). I note here that the final plans before the Court bring forward a number of points of detail which, according to the agreed evidence of the urban design and planning experts, effectively mitigate the proposal’s otherwise visual intrusion into the park (Ex 28 p 7).

29. I note the proposal essentially provides for a 6m building setback to the Sydney Park boundary in accordance with the concept approval (earlier iterations of the proposal had breached the 6m control significantly). Ms Pressick’s evidence is that the building envelope itself, including the limited exceptions which do reach into the 6m setback, are “extremely tightly defined” with setbacks that “enabled the trees in the park to be protected” (Transcript 20/10/2021 p 58). Importantly, in regard to setbacks the experts advised in a further Joint Report in regard to the proposed concept approval modification (Ex 25 p 7):

“Council’s arborist is satisfied that the existing trees in Sydney Park are able to be protected. Council’s landscape architect, urban designer and planner are satisfied that adequate space is available in the setback areas to accommodate a vegetated interface to Sydney Park.”

30. Similar conclusions were drawn in regard to the detailed design DA (Ex 28 p 7).

31. Dense planting of the upper floors and roofs of all of the buildings is proposed, in part with the aim of “obscuring” and “blurring” the massing of the building from Sydney Park (Design Verification Statement Ex LLL p 7). A concern raised by Council was in regard to the detailing of this aspect, including the adequacy of intended roof soil depths and arrangements for maintenance, including how safety concerns might be addressed. According to the landscape experts, the proposal is now satisfactory in regard to these matters. With the architectural and landscape plans before the Court and agreed conditions, the landscape experts are satisfied with soil depths, planting and use of the roof areas, including in regard to landscape maintenance. (Joint Report Landscape Experts filed 22 September 2021 Ex 29 p 6-7).

32. With the proposed building setbacks from Sydney Park (and consequent expected retention of all the nearby trees within the park), substantial areas of the rooftop of all buildings accommodating agreed rooftop planting, and the potentially jarring effect of proposed lift overruns also mitigated through encircling by landscaped mounds; I accept the advice of the planning and design experts that a satisfactory visual relationship with Sydney Park is proposed.

33. In regard to overshadowing, Ms Pressick and Ms Swan advised that while overshadowing would fall mainly on the road reservation, the concept approval provides for some overshadowing of the park. The experts were satisfied that the proposal would be consistent with the existing concept approval in this regard and would not unreasonably overshadow Sydney Park (relevant expert commentary is at Transcript 20/10/2021 p 63).

34. In regard to light spill, Mr Dickson took me to plans showing the key pedestrian cycling pathways and demonstrated through aerial photographs that there was, for the most part, large areas of vegetation between these more well used areas of Sydney Park and the proposed buildings. In his opinion, light spill would be “very low when experienced from those pathways” (Transcript 20/10/2021 p 66). It was also noted that there is already lighting in some areas of the park, in part at least to provide for safe use in evenings.

35. Having regard to my finding at [84] in regard to the contravention of the SLEP building height control, and the above consideration, I accept the evidence of the experts that the proposed development would be compatible with Sydney Park and would not bring about an unreasonable adverse effect on user enjoyment of the park. I further note that the application as now proposed would fence the site off from Sydney Park and deny direct access from the site (Annexure B Condition 10), a change from previous iterations.

Impacts on Sydney Park’s natural ecosystem

36. There were two main themes to this concern. The first was in regard to the risk of loss of trees within the park (and their associated ecosystems) due to the proximity of building works (and excavation) to the boundary. This objection was in part responding to an earlier iteration of plans which provided buildings and works considerably closer to the site’s common boundary with Sydney Park, and unresolved concerns in regard to stormwater management near the boundary with the park. Council’s arborist is now satisfied that the impact on existing trees in Sydney Park would be minor and is acceptable (Joint Report of the Arboricultural Experts – filed 24 September 2021, Ex 30 p 5).

37. The second concern was in regard to the effect on wildlife which currently inhabit or use the park. A particular concern was raised in regard to the Superb Fairy Wren, a protected native species, according to submissions. On this matter, I accept the findings of the Ecological Overview prepared by Ecological Consultants Australia Pty Ltd and TA Kingfisher Urban Ecology and Wetlands and filed 15 July 2020 (Ex TT) and the supplementary letter dated 22 May 2021 (Ex UU) that the conversion of the existing industrial sites to the proposed mixed use development would bring considerable positive outcomes in ecological terms. Proposed ground landscaping and landscaped roof areas would provide additional habitat for locally native species, away from usual ground predators in regard to roof areas.

38. Overall I am satisfied that there would be no unreasonable ecological impacts mindful of the findings of arborists in regard to tree retention and the comment in Ex TT that the majority of the park’s fauna can be considered as “urban specialist species” used to living at the edge of urban environments (Ex TT p 52).

Relationship with Euston Road and compatibility with nearby industrial uses

39. There were also objections raised in regard to the proposal’s interface with Euston Road, in particular that due to the required deceleration lane (for vehicle entry into the site) there would be insufficient area for both a walkway and landscaping. There were seen to be potential safety risks for pedestrians and cyclists. There was also a concern about access of Euston Road more generally.

40. The proposal now provides for a boundary adjustment adjoining the deceleration lane to achieve a public domain width of 6.1m for footpath, landscaping and verge, accommodating deep soil for canopy trees (Ex 25 p 8). There was also a good degree of confidence on the part of the design experts that there can be effective street activation along Euston Road in the site environs, noting the services which would be located particularly at the northern end of the site (Transcript 20/10/2021 p 60). The proposal, as conditioned (including conditions imposed by TfNSW), provides for satisfactory traffic management according to the expert advice.

41. There were also noise-related concerns raised in objecting submissions. There were two aspects to them. First was the concern that residential development at the site (especially given its adjacency to Euston Road with expected increasing traffic flows as a link road to WestConnex) provided for an inappropriate land-use mix. Second was the concern that residential development would bring a threat to the ongoing operation of nearby industrial uses (significant noise generators) which currently have consent to operate 24 hours a day and the future industrial uses on the eastern side of Euston Road more generally (and area designated by Council as the Southern Employment Lands). Council’s contentions had originally nominated concerns of entirely the same kind.

42. The resolution of the proposal’s acoustics, in juxtaposition with the achievement of the required airflow to apartments, was a matter of detailed expert attention in these proceedings. With the final architectural plans now before the Court and agreed conditions which together detail: façade treatment, individual apartment window types (as relevant) and airflow arrangements, the acoustic and airflow experts agree that all relevant concerns are addressed (Supplementary Joint Acoustic Report filed 5 October 2021 Ex 31 and Transcript 20/10/2021 p 29-31 depicting oral evidence from acoustic and airflow experts). Behind the acoustic findings was a specialist report prepared by Wood and Grieve dated 30/9/2021 and annexed as Appendix B to Ex 31, which according to Dr Tonin provides the information required for the resolution of acoustic contentions.

43. Particular attention was given to the ongoing operation of nearby industrial uses. The premises of most attention was the nearest concrete batching plant to the site, located immediately opposite and with consent to operate 24 hours per day. Dr Tonin indicated that he was happy that the acoustic design for the proposal of itself was satisfactory, but also referred to the addition of a condition of consent (Annexure B Condition 84) which provided a further degree of assurance for the 24 hour operating premises (Transcript 20/10/2021 p 31-32). I am satisfied that the proposed mixed use development, as conditioned, can co-exist with existing industrial premises, and would not unreasonably prejudice future employment generating development in the Southern Employment Lands.

Design excellence

44. Lay submissions also disputed whether design excellence will be achieved with the proposal. I will have more to say on the design excellence when considering jurisdictional considerations, below.

Jurisdictional considerations

45. The following jurisdiction considerations require attention.

Environmental Planning and Assessment Act 1979, section 4.24(2)

46. As introduced at [4], under s 4.24(2) of the EPA Act, each of these appeals cannot be determined favourably if they are inconsistent with the concept approval. I have also indicated earlier that there has been an underlying intention, as the iteration of plans has evolved, that consistency be achieved.

47. In regard to the early works DA, and having regard to the advice in the Addendum Statement of Environmental Effects dated 2 August 2021 (Ex XX p 7-8), I note the proposal’s alignment with the concept approval in regard to Schedule 1A Conditions 2, 15, 16 and 26, in regard to staging, acid sulfate soils, construction management planning and contamination and remediation. It is my finding that the preventative trigger contained at s 4.24(2) is not triggered in regard to the early works DA as the early works DA is not inconsistent with the concept approval.

48. In regard to the detailed design DA, I am aware that a main task of the urban design and planning experts in these appeals has been to consider whether there is the required degree of consistency between the particulars of the content of this detailed design DA and the concept approval. On the basis of the evidence I have heard throughout the proceedings, and also noting the commentary on this topic in the Addendum Statement of Environmental Effects (Ex MMM p 10-11), I find that the preventative trigger contained at s 4.24(2) is not activated in regard to the detailed design DA because the detailed design DA is not inconsistent with the concept approval.

Sydney Local Environmental Plan 2012

49. I note that the site is zoned B4 Mixed Use under SLEP. I have given consideration to the zone objectives.

50. Clause 4.3 relates to height of buildings. The detailed design DA would contravene the maximum height of building development standard at cl 4.3 of SLEP. There is no jurisdiction to approve development contravening a development standard under SLEP unless the permissive powers available under cl 4.6 are triggered (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action) at [13]). In this instance the applicant has opened the door to these permissive powers through submission of a written request under cl 4.6(3) (tendered into evidence as Ex NNN). It will be seen that I find favourably in regard to the permissive powers of cl 4.6 (see [60] et seq).

51. Clause 4.4 is concerned with floor space ratio (FSR). There is comfortable compliance with the relevant standard. The applicable FSR control is 2.5:1 under SLEP and the floor space calculations contained in the addendum statement of environmental effects dated 2 August 2021 (Ex MMM p 5) show the proposal at 2.07:1.

52. Clause 5.21 is concerned with flood planning. This topic has been another prominent consideration in this matter. The final flood modelling and stormwater strategy (as prepared by CJ Arms dated 2/8/2021 tendered as Ex SSS) worked through related matters (including the provisions of Section 3.7 of Sydney Development Control Plan 2012 (SDCP)) concluding that with the proposed flood and stormwater management strategy, there would be no material impact on the surrounding Euston Road flood levels nor the adjoining development. I am satisfied in regard to the flood planning considerations.

53. Part 6 Division 4 of SLEP is concerned with design excellence. Clause 6.21C is the operational provision. Further to the provisions of the concept approval (see [6]), cl 6.21C(1) of SLEP provides that:

Development consent must not be granted to development to which this Division applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence.

54. Clause 6.21C(2) then provides a list of matters to which a consent authority must have regard to when determining its opinion as to whether a proposed development exhibits design excellence. Clause 6.21D(1) provides that a competitive design process needs to be held in relation to the detailed design DA. This has occurred and is explained at [6].

55. While an earlier iteration of the detailed design DA had been deficient, the scheme as now before the Court embodies:

1. building setbacks, designation of deep soil areas, and ground and building landscaping which would ensure a good relationship with the public domain areas in Sydney Park and Euston Road including no unreasonable view loss from public vantage points

2. a more complete response to flooding risk

3. resolution of acoustic and at the same time airflow requirements expected of SEPP 65

4. effective visual privacy provisions including in between the proposed buildings, and

5. achievement of BASIX requirements in regard to ecological sustainable development.

56. Underpinning each of these aspects is the fact of the overall landscape and architectural response to the contextual setting, with the proposal generally aligning with winning submission in regard to the competitive design process initiated under SLEP. In oral evidence, the planning and urban experts explained that there had been a large effort on the part of the many individuals involved in the resolution of the various issues and inter-relationships arising in the finalisation of the scheme, in accordance with design excellence parameters. Ms Pressick indicated that the experts were of the view that the proposal before the Court exhibited design excellence (Transcript 20/10/2021 p 62) at the time, and with no disagreement from others, indicating that she spoke on behalf of the other planning and urban design experts in the virtual witness box at the time (ie Mr Dickson, Ms Swan and Ms Robinson).

57. It is my belief that the evolution of the plans now before me evidence a complex design resolution process involving specialists from many fields, relating to one another, across disciplines, to achieve points of resolution. I am convinced, having considered the matters listed at 6.21C(2) and heard now from many experts in relation to the project, that the proposal before me is something which exhibits design excellence.

58. Clause 7.14 is concerned with acid sulfate soils. The site falls into the area designated as Class 3 in regard to acid sulfate soils. As required under cl 7.14(3), an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual (Acid Sulphate Soils Management Plan prepared by EP Risk, reference EP1327.004_V2 dated 17 December 2019). Compliance with the recommendations of the plan is required under Condition 47 of the consent for the early works DA (Annexure A to this judgement) and Condition 142 of the detailed design DA (Annexure B of this judgement).

59. Clause 7.23 is concerned with retail development outside planned centres. I accept the advice in Ex MMM p 10 that none of the proposed shops would exceed a gross floor area of 1000m².

Height of buildings development standard contravention

60. The maximum building height applying to the site under cl 4.3 of SLEP is 18m. Clause 6.21(7) of SLEP makes allowance for a proposal to be eligible for an additional 10% in building height above that available under cl 4.3. This additional 10% is contingent on the consent authority being satisfied that the proposal exhibits design excellence. I have indicated above that I am satisfied that the proposal does so (see [57]). Nonetheless the detailed design DA would still contravene in regard to building height notwithstanding this 10% “bonus”, which would bring the numerical control up to 19.8m in this instance.

61. The applicant is seeking an exception for the contravention under cl 4.6(2) of the SLEP. The permissive power in cl 4.6(2) is subject to the restrictions in subcll 4.6(3)-(5);

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the Applicant that seeks to justify the contravention of the development standard by demonstrating—

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless—

(a) the consent authority is satisfied that—

(i) the Applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out,

…

62. Thus, the Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the permissive power under cl 4.6(2) to grant development consent notwithstanding a development standard contravention (Initial Action at [14]).

63. The first opinion is in regard to a written request from the Applicant seeking to justify the contravention of the development standard and, specifically, whether it has adequately addressed the two matters required to be demonstrated at cl 4.6(3) of SLEP. The second opinion requires me to make my own finding of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.

62. The applicant has opened the door to application of cl 4.6(2) by submission of a written request seeking to justify the contravention. The written request was prepared by Ethos Urban and is dated 2 August 2021 (Ex NNN).

63. The particulars of the variations in building height as proposed in the detailed design DA are explained in Ex NNN (p 10-14). Figure 3 provides Table 1 from Ex NNN which details both parapet and maximum heights of each of the eight buildings.

Figure 3 - Table of maximum heights of Buildings A-H (source: Clause 4.6 written request by Ethos Urban Ex NNN p 10)

Whether compliance unreasonable or unnecessary

66. Mindful of cl 4.6(3)(a) of SLEP, the written request seeks to demonstrate that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case. It does so mindful of Preston CJ’s finding in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (“Wehbe”). The written request uses the first “Wehbe way”, seeking to show how, otherwise, the development achieves the objectives of cl 4.3 of SLEP, which are reproduced below:

67. I reproduce the list of objectives of cl 4.3 below:

(a) to ensure the height of development is appropriate to the condition of the site and its context,

(b) to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas,

(c) to promote the sharing of views outside Central Sydney,

(d) to ensure appropriate height transitions from Central Sydney and Green Square Town Centre to adjoining areas,

(e) in respect of Green Square—

(i) to ensure the amenity of the public domain by restricting taller buildings to only part of a site, and

(ii) to ensure the built form contributes to the physical definition of the street network and public spaces..

68. In regard to the first objective, the written request introduces the site and its context (with Sydney Park a prominent element) then explains why the proposal would sit appropriately within it. It notes the existing development on the site including its massing as perceived in Sydney Park. It then explains the proposed design features which together respond to the park interface. This is through the significant tree planting at building edges and rooftop levels which would provide an effective transition, in a sense “(continuing) the canopy and undulating topography of Sydney Park” (Ex NNN p 17). At the macro scale, the proposal would be set against significantly taller buildings when viewed from the park (to the south-east over Mascot). Photomontages assist on this point. The written request also references SDCP, in particular the relevant Locality Statement (section 2.7.10). The written request notes the proposal’s accordance with principles relating to the progressive conversion of existing industrial buildings on Euston Road to mixed use development with ground floor retail and commercial uses and residential above, and that the areas of height contravention have good degrees of modulation and articulation, including in relation to the variety of materials which reduce perceived bulk and scale. The written request argues the proposal, notwithstanding the height contraventions, would be perceived as something of positive visual amenity, appropriate to the conditions of the site and context. Through the explanation provided, as summarised above, the written request adequately demonstrates that the development would achieve the first objective.

69. In regard to the second objective, the written request observes that the site is not a listed heritage item, nor is it situated within a conservation area or in the immediate vicinity of a heritage item. It is suggested that a group of terraces at 2-34 Campbell Road (listed as Item I12 in SLEP) are located approximately 150m south west of the site, on the other side of Sydney Park. Another listed item is some 550m north west (Bedford Brickworks, including chimneys, kilns and grounds (Item I27 in SLEP). I accept the advice in the written request that there is sufficient distance separation to effect an appropriate height transition between the proposal and heritage items and buildings in heritage conservation areas or special character areas.

70. In regard to the third objective, the written request observes that the proposal would not adversely affect private views given its separation from private property. The written request refers to the detailed assessment of public views (from the park) (tendered into evidence as Ex KK), and provides some photos from this work. Views from within Sydney Park were seen to be reasonably shared and, the written request effectively argued that the views from within Sydney Park would not be unreasonably affected. The written request adequately demonstrates that the proposal achieves the third objective.

71. The fourth and fifth objectives are not relevant as the site is not in Central Sydney or Green Square.

72. The written request has adequately demonstrated that the underlying objectives of SLEP’s height of buildings standard have been achieved notwithstanding the contravention of the numerical control. In turn, and in accordance with the first Wehbe way, I find that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

Whether sufficient environmental planning grounds to justify contravention

73. The written request argues a series of environmental planning grounds as justifying the contravention. The first is in regard to the improved flood planning outcome. The amendments to Council’s adopted flood planning levels (between the originally approved concept approval and the present) had the effect of requiring an additional 1.1m to habitable floor levels, all other things being equal, pushing up the building height. Reference is also made to the addition of a “transfer slab” on the Euston Road buildings, which would facilitate the mix of retail and residential uses on Euston Road. In accordance with previous submissions, the written request argues the proposal provides for an appropriate visual relationship with Sydney Park due to architectural and landscape architecture design elements, in particular the recessing of the Parkside buildings (ie increased setback to the park) as height increases. The overall design quality of the development is also cited as an environmental planning ground. Of note here is the written request’s reference to the objects of the EPA Act, in particular object (g) in relation to the promotion of good design and amenity of the built environment. The written request references the fact that the interrelated landscape and architecture, as proposed, represents the outcome of a design competition under SLEP, and that this design ensures that the height variation is visually sensitive. It is also noted that the original concept application approval already provided for a building height in exceedance of the SLEP control. These arguments, as put in the written request, are sufficient environmental planning grounds to justify the contravention of the building height standard.

74. Together, the above findings mean the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of SLEP. It follows that the test of cl 4.6(4)(a)(i) is satisfied in regard to the height of buildings contravention.

Public interest

75. I now turn to the test at cl 4.6(4)(a)(ii) of SLEP, and whether the proposed development would be in the public interest because it is consistent with the objectives of the building height standard and the objectives for development within the B4 zone.

76. I agree with and rely on the written request’s demonstration that the proposed development is consistent with the objectives of the applicable building height standard.

77. The zone objectives are reproduced below:

•  To provide a mixture of compatible land uses.

•  To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

•  To ensure uses support the viability of centres.

78. I am satisfied that with the particulars of the design, including in regard to building height, setbacks and landscaping, the proposal has a compatible relationship with Sydney Park. The detailed design of the apartments, including in regard to noise management particulars and air flow requirements provides for a compatible relationship between the proposed residential apartments and non-residential uses on and off site. The proposal is consistent with the first zone objective.

79. The proposal does provide for an integration of business, retail and residential development in an accessible location. The location has good access to public transport but also Sydney Park. Given the setting the proposal is seen to be consistent with the objective of maximising public transport use. The proximity of new residences to Sydney Park would encourage walking and cycling. The proposal is consistent with the second zone objective.

80. The scale of the proposed retail and commercial and activity on the site would not be such as to adversely affect the viability of centres. The proposed additional population would support the viability of centres. The proposal is consistent with the third zone objective.

81. On the basis of the above I find the development consistent with the B4 zone objectives.

82. Based on my conclusions above, the proposed development will be in the public interest because it is consistent with the objectives of the building height standard, and the objectives for development within SLEP’s B4 zone. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of SLEP are met in regard to the height of buildings contravention.

Conclusion – building height contravention

83. I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b) of SLEP but note that I have considered the matters in cl 4.6(5) in coming to my conclusions in regard to the contravention and find nothing of significance arises in regard to these matters.

84. The states of satisfaction required by cl 4.6 of SLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the building height standard.

State Environmental Planning Policy (Transport and Infrastructure) 2021

85. Section 2.119 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure) is concerned with the impact of road noise or vibration on non-road development, and is triggered given these expected traffic volumes. A detailed acoustic assessment has been undertaken for the project (prepared by Wood and Grieve Engineers dated 30 September 2021 Ex OOO). This work has taken into consideration the ‘NSW Department of Planning’s ‘Development near Rail Corridors and Busy Roads (Interim Guideline)’ (Ex OOO p 1 and 17). I too have taken into account the Interim Guideline as required under s 2.119(2) of SEPP Transport and Infrastructure. Predicted road noise generation upon completion of the above road works is provided. A detailed schedule of glazing (including double glazing and its spacing) requirements for individual apartments are prescribed, responsive to particular settings (Ex OOO p 25-28). That is to say, the Euston Road buildings require more substantial noise amelioration than the Parkside buildings (given the Euston Road buildings in part shield them from road noise). Given Ex OOO’s findings, and their reflection in agreed consent conditions (eg Condition 85) and mindful of the agreed supportive advice of the acoustics experts in the proceedings, I am satisfied that appropriate measures will be taken to ensure the requirements of s 2.119(3) of SEPP Transport and Infrastructure are met.

86. Euston Road has a local road classification (Traffic Impact Assessment dated 3/8/2021 Ex RRR p 10). Section 2.121 of SEPP Transport and Infrastructure applies as the proposal would accommodate more than 300 dwellings. TfNSW has been consulted with regard to the proposal. The key requirement from Council and TfNSW, given the expected future traffic volumes relating to a completed WestConnex interchange, was that the proposal provide an appropriate deceleration lane for the site ingress. The relevant requirements have been satisfied. TfNSW has also issued General Terms of Approval in relation to the proposed deceleration lane which are provided at Schedule 3 to the proposed consent conditions.

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development

87. In regard to State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) and cl 29 of the Environmental Planning and Assessment Regulation 2021, the Applicant has provided the required statement by the proposal’s qualified designer (Ex LLL) addressing how the design quality related principles and objectives of Parts 3 and 4 of the Apartment Design Guide (ADG) have been achieved. I have considered the design quality of the development when evaluated in accordance with the design quality principles, and the ADG. I am satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles and the relevant ADG objectives (as required by cl 30(2)).

State Environmental Planning Policy (Resilience and Hazards) 2021

88. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) includes provisions in regard to contamination and remediation. The provisions of s 4.6 require a consent authority to consider whether land is contaminated. In this instance the land has been found to be contaminated, and as such the provisions of s 4.6(1)(b) and (c) apply. These provisions require a consent authority to be satisfied that:

• the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

• if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, that the land will be remediated before the land is used for that purpose.

89. I am satisfied in regard to the above two matters mindful of the investigations undertaken to date and the conditions which have been applied. In particular I reference Conditions 34 and 35 to the early works DA (Annexure A to this judgement). These conditions refer to the Remediation Action Plan, prepared by, EP Risk, reference EP1327.003_v4 (2021/353003) dated 28 May 2021 and the Section B Site Audit Statement (SAS-B) (2021/353017) and Site Audit Report (2021/353016) reference number MP120-B, prepared by Melissa Porter and dated 4 June 2021, and require the site to be remediated in accordance with these reports. In addition, all remediation work is to be carried out in accordance with the guidelines in force from time to time under the Contaminated Land Management Act 1997 (Condition 35(c)). I am satisfied in regard to the matters listed in s 4.6(1). I also note, having regard to the lay submissions raising concerns in regard to potential damage to trees in Sydney Park, that the conditions of consent for the early works DA make particular reference to tree protection, both by referencing the Tree protection plan prepared by Sue Barnsley Design (Condition 1) and through conditions including requiring compliance with the conditions of the arboricultural impact assessment (Condition 12).

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

90. A BASIX certificate has been issued for the amended plans (Ex FFFF).

Integrated development

91. The proposal is integrated development under s 4.46 of the EPA Act on two fronts.

92. Under s 138 of the Roads Act 1993 consent from TfNSW is required in regard to works along Euston Road. TfNSW have issued general terms of approval in relation to this work. General terms of approval have also been issued by Water NSW under the Water Management Act 2000 in relation to dewatering activity. The general terms of approval issued by these bodies are included at Schedule 3 to conditions of consent in regard to both applications.

Sydney Development Control Plan 2012

93. I have given consideration to SDCP. This policy instrument has come up from time to time in the consideration of various topics in expert reports. However, I note that the concept approval and competitive design and design excellence processes, relating to this site, have been working at a more site specific level than SDCP. This has meant that less attention is warranted to each of the detailed provisions of SDCP.

Other evaluation matters

94. There are other matters listed in s 4.15(1) of the EPA Act which I have given consideration to which do not warrant further attention in this judgement. I do note, however, s 4.15(1)(d), which is concerned with submissions made in regard to the application. But I only wish to note that I have addressed this topic earlier see [23]-[44].

Conclusions

95. In accordance with the above findings, both the early works DA (Proceedings 2020/291179) and the detailed design DA (Proceedings 2020/207341) warrant approval in accordance with agreed conditions, relating to each matter individually (Annexure A and B to this judgement, respectively). While the majority of the judgement has been concerned with the particulars of the detailed design DA, as explained at [20], the positive finding in regard to the detailed design DA means there are no outstanding issues in relation to the early works DA.

Orders

Proceedings 2020/291179

96. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application No. D/2018/718 for demolition and site preparation works, including excavation, remediation, tree removal, site stabilisation and installation of construction hoarding, at 205-213 and 215-225 Euston Road Alexandria, subject to the conditions of consent at Annexure A.

Proceedings 2020/207341

97. The Court orders that:

1. The written request pursuant to cl 4.6 of Sydney Local Environmental Plan 2012, in regard to the proposal’s contravention of a building height standard, prepared by Ethos Urban and tendered as Exhibit NNN in the proceedings, is upheld.

2. The appeal is upheld.

3. Development consent is granted for Development Application No. D/2018/907, for eight mixed use buildings, comprising of 356 residential apartments, office and retail uses and two basement levels for car parking, at 205-213 and 215-225 Euston Road Alexandria, subject to the conditions of consent at Annexure B.

4. The exhibits are retained with the exception of the following exhibits which are returned: 7-19, 21-23, 25-26, 28-35, B, V, E, UU and GGGG.

____________

P Walsh

Commissioner of the Court

Annexure A (594475, pdf)

Annexure B (1165901, pdf)

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Decision last updated: 05 April 2022