Maygood v City of Sydney Council

[2008] NSWLEC 1112

Land and Environment Court

of New South Wales

CITATION:	Maygood v City of Sydney Council [2008] NSWLEC 1112
PARTIES:	APPLICANT Maygood Australia Pty Limited RESPONDENT City of Sydney Council
FILE NUMBER(S):	11066 of 2007
CORAM:	Brown C
KEY ISSUES:	Development Application :- overdevelopment - height - bulk - impact on nearby heritage items and Conservation Area - internal amenity - amenity impacts on nearby residences
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998
CASES CITED:	PDP (Darlinghurst Apartments) Pty Limited v City of Sydney Council [2005] NSWLEC 41 Maygood Australia Pty Limited v City of Sydney Council [2006] NSWLEC 423 Maygood Australia Pty Limited v City of Sydney Council [2007] NSWLEC 157
DATES OF HEARING:	18, 19/02/08, Preliminary findings 12/03/08
DATE OF JUDGMENT:	10 April 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr P Tomasetti SC SOLICITORS D G Balog & Associates RESPONDENT Mr A Galasso SC SOLICITORS Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

10 April 2008

11066 of 2007 Maygood Australia Pty Limited v City of Sydney Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Application No. D/2007/1680 by the City of Sydney Council (the council) for the use of an existing building and construction of additional floor area for a mixed retail, commercial and residential development at 320 Liverpool St., Darlinghurst (the site).

2 The council maintains that the proposed development is an overdevelopment of the site, unacceptably impacts on the heritage significance of the existing building and the heritage conservation area and provided unacceptable internal amenity for the intended occupants of the residential component of the building.

The site

3 The site has a southern boundary to Liverpool St of 29 m, a western boundary to Little Surrey Street of 38 m and a northern boundary also to Little Surrey Street of 29 m giving a total site area of 1,062 m2. It contains a two storey inter-war Stripped Classical Style building erected in 1926 as the City Eastern Telephone Exchange with a 1930s addition on the eastern side in a similar architectural style. The building is currently vacant and was most recently used as office space.

4 Directly to the east of the site is the Telstra building constructed during the 1970s, which is still in use. To the west and on the opposite side of Little Surrey Street is the Camelot apartment building. Adjoining the Camelot Apartments building to the north is the Poya Inn Hostel, the rear of which is on the alignment of Little Surrey Street. Development to the north is predominantly small-scale residential although the area also includes some commercial uses. The St Vincent's Hospital Precinct is to the south of the site, including a largely constructed biotechnology facility (the Victor Chang Building) near the Liverpool Street frontage and directly opposite the site. The Darlinghurst Public School and St Johns Church are nearby.

Background

5 The site has been the subject of a number of previous appeals. In PDP (Darlinghurst Apartments) Pty Limited v City of Sydney Council [2005] NSWLEC 41 Talbot J upheld an appeal and granted development consent on 10 February 2005 for a mixed retail, commercial and residential development. The proposal involved the part demolition of the existing building and the construction of a residential component comprising 27 units over four levels. The proposal had an FSR of 3.93: 1 and a height of 27 m at the south eastern corner.

6 In Maygood Australia Pty Limited v City of Sydney Council [2006] NSWLEC 423, (Maygood 2006) Roseth SC and Brown C dismissed an appeal on 14 July 2006. The proposal provided for the retention of the existing building for retail and commercial uses. Seven levels of residential accommodation were provided above the existing building for 48 residential units. The proposal has an FSR of 5.6: 1 and a height of 34.4 m.

7 In Maygood Australia Pty Limited v City of Sydney Council [2007] NSWLEC 157 (Maygood 2007) Watts C dismissed an appeal on 14 July 2006. The proposal provided for the retention of the existing building for retail and commercial uses. Six levels of residential accommodation were provided above the existing building for 48 residential units. The proposal has an FSR of 5.12: 1 and a height of 33.9 m.

The proposal

8 The proposal provides for the retention of the existing building for retail and commercial uses over three levels (Ground, Level 1 and 2). Two basement levels (B1 and B2) are to be excavated below the existing building to provide 56 car parking spaces. Seven levels of residential accommodation (Levels 3 to 9) are to be constructed above the existing building for 35 residential units. The proposal has an FSR of 4.79: 1 and a height of 33.9 m.

Relevant planning controls

9 The site is within Zone 10 Mixed Uses South Sydney Local Environmental Plan 1998 (LEP 1998). The proposed use is permissible if consistent with the zone objectives. The site also falls within Conservation Area CA4 – Barcom Avenue Conservation Area. Clause 10 provides that consent must not be granted unless the proposal is consistent with the objectives of the zone. Clause 22 provides that consent must not be granted unless the proposal is consistent with the heritage aims of that clause. Clauses 23A, 23B and 24 provide further heritage requirements.

10 On 18 September 2006, the council resolved that the site be exhibited (with other sites) as a site to be included as a heritage item in the new City Plan Local Environmental Plan. The evidence indicates that the action by the council to have the site included as a heritage item has not progressed beyond the resolution to exhibit the list of sites.

11 South Sydney Development Control Plan 1997: Urban Design (DCP 1997) also applies. Clause 4 in Part A under the heading How to use this plan states, in part:

This Urban Design Plan is an integrated resource document based on a set of design elements. It adopts a performance-based a system of control that focuses on matters to be addressed could performance criteria, to achieve desired outcomes. This approach allows flexibility and innovation by not restricting design solutions to a particular prescriptive standard (except for health and safety reasons).
The emphasis of the Plan is on the assessment of application on merit to achieve the best possible balance between the diverse and sometimes conflicting issues that affect development sites.

12 Part E of DCP 1997 provides requirements for floor space ratio (FSR) (cl 2.2), height and scale (cl 2.3) and facade treatment (cl 2.4). For the subject site, DCP 1997 establishes a FSR of 2: 1 and a height of 18 m.

13 City of Sydney Development Heritage Control Plan 2006 (DCP 2006) applies. The site is identified as being contributory to the Barcom Avenue Conservation Area on the Building Contributions Map. Clause 4.3(a) provides requirements for contributory buildings, cl 6.2 provides general provisions for additions and cl 14.6 provides requirements for warehouses and industrial buildings, including alterations and additions at cl 14.6.2(10).

14 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (the Code) (cl 30(2)(c)).

Over development

15 The council maintained that the proposed development was an overdevelopment of the site because of the excessive height, excessive floor space ratio (FSR) and insufficient setbacks to the west (Little Surrey Street) and south (Liverpool Street).

The evidence

16 Mr Andrew Rees, a town planner provided evidence for the council and stated that the proposed development fails to demonstrate design excellence. In his opinion, the external framing that protrudes beyond the external walls combined with the proposed height and bulk creates a dominating presence (or top-heavy appearance) and detracts from the setting of the existing building below. He suggests that to retain the same external architectural treatment and allow the existing building to remain visually dominant it would be necessary to significantly lower the height of the building and increase the setback from the southern and western facades.

17 Alternatively, the external appearance of the new residential building could be simplified by deleting the external framing, introduce greater amount of lightweight materials to the exterior and setting the external facade of the building back behind the eastern adjoining Telstra building (approximately 1.5 m) and increase the setback from the western boundary so that the new building is no less than 4 m from the western boundary.

18 A number of residents provided evidence on site and agreed with Mr Rees that the proposed development was an overdevelopment. The residents from Little Surrey Street end Surrey Street also raised issues of loss of privacy and the appearance from the rear of their properties, including private open space areas. These issues are addressed later in the judgment but I note that these were not issues raised by Mr Rees.

19 Mr Brett Newbold, an architect and urban designer provided evidence for the applicant. He states that the proposed development demonstrates a considered response to the factors of context and urban design quality. The proposed height and setbacks from Liverpool Street and Little Surrey Street provide a sense of cohesion and continuity to the streetscape. The design mediates the vertical scales that are displayed by the Telstra building and the Camelot apartments, balance the scale to the street that has been created by the Victor Chang Building, provide a gradually stepping street wall alignment from the Telstra building to the Camelot apartments and disguise the current impact of the Telstra building as a visually disruptive streetscape element.

20 Mr Newbold states that the form and facade design has been selected to maintain the streetscape presence of the existing building as well is adapting its more significant architectural elements such as the predominant masonry elements of the existing building and the exterior corners and parapets. The view lines from significant points in Liverpool Street provide a building that does not dominate or overwhelm the existing structure.

Findings

21 Mr Newbold and Mr Rees agreed that strict compliance with the FSR and height controls in DCP 1997 was not necessary. This has been approach adopted in all previous appeals, including Talbot J who stated (at par 16) that the language and context of the DCP is not prescriptive. It focuses in terms of performance criteria allowing for flexibility. Both experts were content to adopt a flexible approach to the provisions in DCP 1997, but with different conclusions. As I understand the evidence of Mr Rees, he does not necessarily object to the height of the proposed development only that the façade treatment should be amended and greater setbacks should be provided to the south and west to create a development with less bulk and scale if that height was to be maintained.

22 Accepting that DCP 1997 provides a level of flexibility, the relevant objectives of the DCP 1997 controls provide guidance on an appropriate building form. The FSR objective is to control the floor space of new development to ensure that its intensity respects and reflects the overall built form and does not detrimentally affect the amenity of the area (cl 2.2, Pt E).

23 The height and scale objectives relevantly seek to ensure buildings are appropriate in scale, compatible and complementary to the areas of townscape significance, the site and its context and achieve high environmental amenity (cl 2.3, Pt E).

24 The setback objectives relevantly seek to encourage setbacks that will complement the streetscape and assist in the integration of new development into the streetscape (cl 2.4, Pt E).

25 The facade treatment objectives relevantly seek to ensure building facades reinforce the character and continuity of streetscape by recognising contextual cues particularly in streetscapes of heritage significance and contribute to harmonious and robust streetscapes (cl 2.5, Pt E).

26 Contextually, I (with Roseth SC) made the following comments (at par 35) in Maygood 2006 in relation to the Liverpool Street streetscape:

As regards the Liverpool Street frontage, we do not agree that because the scale of the Telstra building is anomalous, it should be disregarded. While it is undoubtedly out of scale with the rest of the street, for better or for worse, it exists. Similarly, we do not accept that the proposed development on the St Vincent Hospital site (the Garvan Institute) should be disregarded merely because it is within a different zone to the site. Nor should the Camelot apartment building be disregarded because it is inconsistent with current planning requirements. These buildings form part, or will form part of the streetscape of Liverpool Street. The ordinary passer-by would perceive the height, bulk and scale of the buildings without being aware of zone boundaries or compliance with current planning requirements. If the Telstra building and the Camelot apartments were replaced, it is unlikely that their replacement would be smaller. In our opinion, therefore, the height at Liverpool Street of the proposal, being between the Telstra building and the Camelot apartments, is acceptable.

27 With the benefit of a further site view and a greater understanding of the relationship with the Victor Chang Building because of its almost completed state, I see no reason to depart from my previous assessment of the contextual relationship with the site. I also note that the current proposal is one level lower than that proposed in Maygood 2006.

28 Some concerns were raised with the proposed development in Maygood 2006 that related to the architectural treatment of the proposal. There was some support for the council’s argument that the lack of an appropriate setback would relegate the existing building form to a non-descript base rather than an interesting visual element that would contribute positively to the streetscape and the conservation area. It was however found that while the façade treatment to Liverpool Street was a negative feature of the proposal, the refusal of the application for that reason alone was not justified.

29 In this case, the proposal provides for a varied setback for the residential component above the existing building ranging from 3 m (excluding columns and architectural features) to around 1.4 m. As I understand, this was to provide a link between the existing Telstra building (that has a setback of approximately 3.8 m) and the Camelot apartments that are constructed on the property boundary. The residential component also provides for two different vertical architectural treatments that according to Mr Newbold are to reflect the subtle differences in the design of the existing building brought about by it’s construction at two different times.

30 In terms of the presentation to Liverpool Street, I am satisfied that it is generally acceptable but with some minor modifications that are not necessarily fatal to the proposed development. The presentation could be improved through the elimination of the varied setback. In my view, there is considerable benefit in providing a consistent set back at the upper levels of the proposed development as it will provide greater empathy with the existing building design and reinforce the strong unbroken and consistent form the building has in the streetscape. There is greater benefit in adjusting the design to relate more closely to the existing building rather than the more distant Camelot apartments. The varied and smaller setback near the Camelot apartments draws attention away from the features of the existing building because it is inconsistent with the regular setback of the existing building and is simply too close to the parapet of the existing building. A consistent setback of 3.8 m (excluding columns and architectural features) would generally align with the existing Telstra building, emphasise the consistent setback at the Liverpool Street frontage and more strongly distinguish the new and old components of the development. As the proposal has a significant setback to the north some minor encroachment into this area may be possible if the additional setback to Liverpool Street cannot be achieved totally through internal adjustments.

31 I am generally untroubled with the different architectural treatment of the upper levels provided a consistent setback of 3.8 m is applied to the Liverpool Street frontage as this reflects the different design of the existing building, contrasts the new building form with the existing building and reinforces the podium effect created by the solid form of the existing building.

32 The western part of Little Surrey Street has a width of 4.85 m. The majority of the development on the western side consists of parking for the buildings that has frontage to Victoria Street. The exception is the Poya Inn hostel, which extends to the alignment of Little Surrey Street. I accept Mr Newbold’s evidence that the design adequately addresses the Little Surrey Street frontage through the additional prominence that reinforces the corner location and the relationship with the existing building, inset balconies that occupy over half of the western residential elevation and the progressive reduction in wall height at the north western corner of the building.

33 With the minor modification suggested in the previous paragraphs, I accept that the proposed development satisfactorily addresses the objectives for height and scale, FSR, setbacks and facade treatment in DCP 1997.

34 Additionally, I find that the proposed development is consistent with the relevant Design Principles in SEPP 65, namely Principle 1: Context, Principle 2: Scale and Principle 3: Built Form.

Heritage impacts

35 The council maintained that the proposed development unacceptably impacted on the heritage significance of the existing building and the Barcom Avenue Conservation Area.

The evidence

36 Mr John Poulton, a heritage specialist provided evidence for the council. He agrees with the evidence of Mr Rees in relation to the limited setbacks of the residential component of the development and concludes that it will be uncharacteristic of the scale of the streetscapes within the Conservation Area. While accepting that some attempt has been made to draw the architectural language of the existing building into the proposed design, Mr Poulton maintains that these measures do not relate as closely or as sympathetically to the architecture of the building as suggested by Mr Brooks, the applicants heritage consultant. The additions will read as two differently designed and distinct sections along Liverpool Street whereas the 1930’s addition to the existing building was designed as a seamless addition to the 1920’s original building.

37 Even taking into account the form of the Victor Chang Building, that in the opinion of Mr Poulton responds to an adjoining heritage item and the streetscape of Liverpool Street, the proposed additions does not read as a visually light structure, does not have adequate setbacks from Liverpool Street and Little Surrey Street and does not relate appropriately to the existing building. Consequently the proposed additions and adversely impact on the existing building and in turn impact on the significance of the Conservation Area.

38 Mr Brooks takes the opposite view. He maintains that the proposal has adopted a visually light architectural language with more extensive use of glass. The architectural arrangement of the upper section now closely takes its primary references from the rhythm and layout of the main elevations of the Telstra building and achieves a greater contextual unity with the established architectural language of this building.

39 He notes that the location of the site on the edge of the Conservation Area and the relative isolation from the bulk of the sensitive streetscapes in Surrey Street. Consequently, the proposed additions will not have such a degree of impact on the contributory building that there is a consequence adverse impact on the Conservation Area as a whole. He disagrees with Mr Poulton on the impact of the Victor Chang Building on the Conservation Area.

Findings

40 I have already found that the height and architectural treatment at the Liverpool Street and Little Surrey Street frontages are acceptable. If considered in a heritage context I accept that the conclusions reached in the previous paragraphs are equally applicable. The site is located at the edge of the Conservation Area and while this does not exclude the site from the requirements associated with the Conservation Area it nonetheless raises other matters for consideration. The Heritage Inventory Report identifies the significance of the area and specifically identifies the industrial history of Darlinghurst and also the high aesthetic values of its fine coherent streetscapes. These streetscapes include the residential development of the late Victorian and early Federation period, such as that found in Surrey Street.

41 I am satisfied that the proposed development will not impact on the important residential streetscapes because of the location of the site some distance from these streets. Apart from the physical separation distance, the site also falls within a different visual catchment to the important heritage streetscapes and dwellings.

42 I am also satisfied that the proposed development adequately maintains a satisfactory link with industrial use of the property through the retention and its treatment as part of the proposed development.

43 The site is located in proximity to a number of identified heritage items. The closest heritage item is the Green Park Hotel located on the corner of Victoria Street and Liverpool Street, diagonally opposite the site. It is a two and three-storey Federation style building erected in 1893. The item is separated from the new Victor Chang Building by an existing lane. I agree with Mr Brooks that the proposed development will have minimal if any impact on this heritage item because of the physical separation and lack of any direct association with the site. It follows that other heritage items in the vicinity but located further away will also be generally unaffected by the proposed development.

44 After considering the requirements of cll 23A, 23B and 24 of LEP 1998 and the relevant requirements in DCP 2006, there are no heritage reasons why the proposed development should not proceed.

Internal amenity

45 The council maintained that the proposed development does not provide an adequate level of amenity for future occupants in relation to solar access, natural light, noise and natural ventilation.

The evidence

46 Mr Rees states that the number of south facing apartments is excessive making the development more reliant on artificial lighting during the day. The Code recommends limiting the number of single aspect apartments with a southerly aspect to a maximum of 10% of the total units proposed. The proposal provides for six apartments (or 17%) being apartments 1, 11, 14, 20, 27 and 32 that have a southerly aspect.

47 Mr Rees also states that the natural ventilation of south facing apartments and maisonette apartments 1, 3, 4, 5, 16, 17, 18 and 29 are unacceptable and need to be amended to reduce the depth of the apartments. The Code provides for a depth of an apartment of no more than 8 m from a window.

48 The south facing apartments also are subject to more traffic noise from Liverpool Street and the adjoining Green Park Hotel according to Mr Rees.

49 Mr Newbold disagrees with the conclusions reached by Mr Rees. He calculates that satisfactory sunlight would be received by 77% of the proposed dwellings onto balconies and/or into living rooms. This exceeds the 70% requirement in the Code where apartments should receive 2 hours of sunlight each day. In his opinion, the six single aspect dwellings that face south receive abundant daylight that would substantially exceed BCA requirements.

50 Mr Newbold further states that 83% of the proposed apartments will receive satisfactory natural cross ventilation. The Code requires that 60% of dwellings achieve satisfactory natural ventilation. He notes that six apartments are maisonette-style apartments with voids to the mezzanine floors. In his assessment, there are only six single aspect apartments that do not comply with the Code requirements for natural cross ventilation.

Findings

51 The Code provides “Rules of Thumb” for a range of design elements. For daylight (which includes both diffuse and direct light) the number of single aspect apartments with a southerly aspect should be limited to 10% of the units and 70% of apartments should receive a minimum of two hours between 9 a.m. and 3 p.m. in midwinter to living rooms and private open space areas.

52 The proposed development provides 6 apartments that have a single southerly aspect. This represents one apartment on each level of the proposed development. I accept that various architectural means have been used to provide dual frontages to the remaining apartments so access to daylight can be achieved. I am satisfied that reasonable attempts have been made to provide daylight to the development and while the result is not optimal it is satisfactory in the circumstances of the particular characteristics of the site.

53 On the matter of access to daylight, I agree with the conclusions of Mr Newbold. Again, I accept that reasonable attempts have been made to provide daylight to all but the six south facing apartments. While some west facing apartments will achieve less daylight than other apartments in the development I accept that the Rule of Thumb requirement of 70% is likely to be achieved by the proposed development. If I am incorrect in this conclusion, the variation to the 70% requirement would not be significant and would not be a reason for the refusal of the development application.

54 For natural ventilation, the Rule of Thumb requires 60% of residential apartments (or 21 apartments) should be naturally cross ventilated. The requirement for natural ventilation provides that building depths should typically range from 10 m to 18 m. As I understand the evidence of Mr Rees, this requirement is not satisfied as the depth of 8 apartments exceeds 8 m. I note however that on his assessment the Code requirement of 60% is achieved, that is 27 apartments (or 77%). I agree with Mr Newbold that the proposed development provides acceptable levels of natural ventilation for the majority of the apartments through the use of maisonette-style apartments, corner apartments, dual aspect apartments and cross through apartments. While the 8 apartments raised by Mr Rees exceed 8 m in depth, the variations to this standard are not significant would not be a reason to refuse the application.

55 I also do not accept that the potential noise sources from the Green Park Hotel and Liverpool Street would be a reason to reduce the number of south facing apartments. As previously mentioned, only one apartment on each level has a single southerly aspect. Importantly, the residential apartments that face Liverpool Street contribute in a positive way to an acceptable streetscape appearance when viewed from this location.

Resident concerns

56 At the site view, a number of local residents including residents from Surrey Street and Little Surrey Street as well as other interested parties provided evidence on-site. Their concerns, not addressed previously in this judgment generally relate to:

• Impact on groundwater flows,
• loss of privacy/overlooking,
• height/visual bulk,
• garbage storage and collection, and
• traffic.

Groundwater flows

57 It was stated that there is an underground stream below the site and with the excavation for the basement car park the stream will be interrupted. This has not been taken into account in the applicant’s geotechnical reports.

58 The geotechnical report by Jeffrey and Katauskas Pty Ltd, dated 18 August 2006, states that no ground water seepage was observed in the test pit excavations or for the limited period of monitoring. No observations could be made during the borehole testing and long-term groundwater monitoring was not carried out. Further assessment of seepage inflow quantities was recommended but only in relation to the determination of pump sizes on the basis that there is likely to be some ground water seepage into the basement excavation. Further requirements were recommended for basement drainage.

59 In the absence of any further information to contradict the conclusions in the geotechnical report, I accept that the groundwater issues adequately addressed through the Jeffrey and Katauskas report.

Loss of privacy/overlooking

60 The issue of loss of privacy and overlooking was raised by a number of residents who live in Little Surrey Street and Surrey Street. With the benefit of the site view and sightlines prepared showing the proposed development and nearby dwellings, the extent of overlooking would not warrant the refusal of the application. The planter boxes on the private roof gardens on the Level 3 prevent any persons using these areas looking into the dwellings in Little Surrey Street. It may be possible to see the rear terrace areas of some dwellings in Little Surrey Street from the proposed development however the separation distance is in the order of 20 m from the apartments on Levels 4 to 7 and a greater distance from Levels 8 and 9.

61 The separation distances to the rear courtyards and balconies of the dwellings in Surrey Street are in the order of 30 m from the private roof gardens on Level 3 and 39 m the apartments on Levels 4 to 7 and a greater distance from Levels 8 and 9.

Height/visual bulk

62 The residents who live in Little Surrey Street and Surrey Street raised issue with the visual bulk of the proposed development. On the site view, an appreciation of the height of the proposed building could be made from various locations by reference to the existing Telstra building. I am satisfied that the height and bulk of the proposed development is acceptable when viewed from Little Surrey Street and Surrey Street and other areas in the locality.

63 The height of the proposed buildings will be largely screened from Little Surrey Street by the existing parapet although I accept there will be locations where the height of the building can be viewed. The generous separation distances between the proposed building and the dwellings in Surrey Street moderates the perception of height and bulk from Surrey Street. The existence of the Telstra building and other tall buildings nearby further moderate the height and visual bulk of the proposal.

Garbage storage and collection

64 The residents who live in Little Surrey Street expressed concern with the use of Little Surrey Street for the placement and collection of garbage. Following the evidence of the residents on site, the applicant provided a condition that amended the proposal to provide for the placement and collection of garbage from Liverpool Street rather than from Little Surrey Street.

65 As I understand this condition satisfactorily addressed their concerns.

Traffic

66 Concern was expressed that the additional residential use of the site would attract additional car parking that could potentially impact on the properties in Little Surrey Street because of the narrow alignment of the street. It was stated that problems are currently experienced with people using private property at the end of Little Surrey Street to park and turn. The proposed development does not rely on Little Surrey Street as access to the basement car park is from Liverpool Street. The number of car parking spaces within the development also satisfies the requirements of the council.

67 Additional traffic generated by the proposed development would not be a reason to refuse the development application.

68 With compliance with the Directions below, I accept that in accordance with cl 10 of LEP 1998, the proposed development is consistent with the objectives of the zone.

Conditions

69 The following conditions are in dispute:

70 Condition 8: this condition requires the preparation of a Heritage Interpretation Strategy and the approval by the council. The applicant accepts the need for the preparation of a Heritage Interpretation Strategy but not the approval of the council.

71 I agree that the condition should remain in full. It was agreed that the building has a level of heritage significance so it is appropriate that the Heritage Interpretation Strategy contains all relevant details and is consistent with other strategies.

72 Condition 43: this condition requires the payment of s 94 contributions. The parties disagreed on two main areas. Firstly, the overall contribution and secondly whether the proposed development should benefit from a credit for the existing building.

73 On the first area of disagreement, the council maintained that the appropriate contribution was $630,175.90 whereas the applicant maintained that the appropriate contribution is $624,126.92. Despite directions to the parties to confer, no agreement could be reached notwithstanding agreement on the appropriate rates for the various components of the proposed building. The difference between the two parties is not significant however I will adopt the overall contribution proposed by the applicant as the calculation sets out the appropriate contribution rates for each of the components of the proposed development. The council provided no such calculations with condition 43 only providing the overall contribution for each contribution category.

74 As the final orders are not to be made at this stage, the parties the opportunity still exist for the parties to reach some agreement.

75 The second area of disagreement involves the question of whether the proposed development should benefit from a credit for the previous population of the existing building. The council maintains that no credit should be given whereas the applicant maintains that a credit of $320,096.77 is warranted.

76 Clause 2.15 of the City of Sydney Development Contributions Plan 2006 (the Contributions Plan) provides a policy for existing development. The policy describes the approach for determining the nett increase in demand for the purposes of leaving only the nett additional population. Credit for the population of past development will be determined to exist for the purposes of granting a credit only in the following circumstances. Clause 2.15 (2) provides:

For the population that has vacated the site for the purposes of redevelopment and/or as a result of changing economic trends since the most recent census on which the Contributions Plan is based. For the purposes of this plan, that means the 2001 Census .

77 Clause 2.15 further states:

If a site the subject of a development application, notwithstanding the presence or otherwise of vacant buildings on the site, was vacated at the time of the most recent census on which the Contributions Plan is based and, therefore no population from that site was counted as part of the 2001 Census population site in this Contributions Plan, then no part of that former population can be construed as "present" or "deemed to exist" for the purposes of securing a credit under this plan.

78 Chapter 10 of the Contributions Plan provides the Dictionary and relevantly:

"existing population" means the population that exists on a site at the time of application for development consent or, in the case of a redevelopment site, which existed immediately prior to the point when occupiers began to vacate the site for the specific purpose of yielding the site for redevelopment. It categorically does not mean any population which departed the site prior to the most recent census for which figures were available at the time the contributions plan was written.

79 Section 94B(3) of the Environmental Planning and Assessment Act 1979 provides that a condition under s 94 may be disallowed or amended by the Court because it is unreasonable in the particular circumstances of the case even if it was determined in accordance with the relevant contribution plan.

80 The basis for applicants request for credit is the previous commercial population that occupied the existing building. The additional demand created by a commercial population on public amenities and public services is recognised in the Contributions Plan.

81 The council argued that no details were provided to support the claim that there was an existing population at the 2001 Census. The applicant argued that the site is currently vacant because of the time associated with the number of applications that sought the redevelopment of the site. A Statutory Declaration (Exhibit G) was provided that stated the site was purchased on 5 August 2005 and that prior to the purchase an inspection of the site revealed evidence of recent occupation as offices and commercial space on all three levels including within the uppermost level within the enclosed roof. Office petitioning had been directed to create individual and group workspaces on all three levels. The premises were extensively carpeted on the first and second levels with linoleum floor coverings on the most upper level. Spaces had been set up and dedicated to computer use with cable terminals in the flooring and other extension wiring in all levels. Work areas were equipped with commercial grade fluorescent lighting and toilets and recreational facilities provided.

82 I am satisfied that condition 43 should be amended to provide for a credit of $320,096.77. In accordance with cl 2.15 (2) of the Contributions Plan, I accept that the population has vacated the site for the purposes of redevelopment since the 2001 Census based on the contents of Exhibit G and as such a credit is justified. In any event, the reference to the 2001 Census is an arbitrary point for the consideration of whether a credit applies. It is clearly helpful in the council's consideration of such requests but it does not however mean that it is the ultimate determinant of whether a credit is granted. The test imposed by s 94(1) is not necessarily time sensitive but whether a development "will or is likely to require the provision of or any increase that the men for public amenities and public services within the area".

83 Condition 60: this condition requires the preparation of an Erosion and Sediment Control Plan. The applicant opposed this condition on the basis that the proposal provides for the excavation of the site and as such sediment will be controlled within the excavation.

84 I agree that the condition should remain. The excavation will provide for sediment and details will need to be provided on how it is to be controlled. The plan may require less detail than other development sites however the issue of erosion and sentiment needs to be fully addressed.

Directions

85 On 12 March 2008 the parties were provided with a Preliminary Judgment that made the following directions:

The applicant is to provide amended plans that provide for a setback of 3.8 m (excluding columns and architectural features) to Liverpool Street for Levels 3 to 9. As the proposal has a significant setback to the north some minor encroachment into this area may be permitted if the additional setback to Liverpool Street cannot be achieved totally through internal adjustments.

The applicant is to file and serve the amended plans by close of business on 19 March 2008.

The respondent is to file and serve draft conditions of consent, in electronic form by close of business on 26 March 2008.

Leave is granted for either party to restore the matter on 24 hours notice if there is disagreement on compliance with these Directions.

If leave is not sought to restore the matter, Final Orders will be made in Chambers after 28 March 2008.

86 The directions were complied with and no leave was sought to restore the matter. The amended plans are Exhibit L and the amended conditions are Exhibit 11.

Orders

87 The Court orders that:

1) The appeal is upheld.
2) Application No. D/2007/1680) for the use of an existing building and construction of additional floor area for a mixed retail, commercial and residential development at 320 Liverpool St., Darlinghurst is approved subject to the conditions in Annexure A.
3) The exhibits are returned with the exception of Exhibits L and 11.

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G T Brown
Commissioner of the Court