Meriton Apartments Pty Limited v City of Sydney Council

[2009] NSWLEC 1311

Land and Environment Court

of New South Wales

CITATION:	Meriton Apartments Pty Limited v City of Sydney Council [2009] NSWLEC 1311
PARTIES:	APPLICANT Meriton Apartments Pty Limited RESPONDENT City of Sydney Council
FILE NUMBER(S):	10088 of 2009
CORAM:	Bly C
KEY ISSUES:	DEVELOPMENT APPLICATION :- residential flat buildings, planning controls, master plan, building height and design, the link separation, floor space ratio, street activation, landscaping, vehicular and pedestrian access.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998 South Sydney Development Control Plan 1997: Urban Design State Environmental Planning Policy No 65
DATES OF HEARING:	22-26 June 2009
DATE OF JUDGMENT:	25 September 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr C. McEwen (SC) with Mr M. Staunton (Barrister) SOLICITOR Mr K Mihail (Solicitor) RESPONDENT Mr P. Tomasetti (SC) SOLICITORS Maddox lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

25 September 2009

10088 of 2009 Meriton Apartments Pty Limited v City of Sydney Council

JUDGMENT

1 This is an appeal against the council's deemed refusal of a development application for a substantial residential flat development at 899 South Dowling Street, Zetland. The proposed development comprises:

• A 22-storey building (plus a 6 m high roof structure/plant room) containing 216 dwellings adjacent to South Dowling Street (Building A). The plans (DA200) show a top of parapet RL of 94.20 above the "surrounding ground" RL of 23.20 indicating a building height of 71 m.
• A part 8 storey, part 13, part 14-storey building containing 184 dwellings adjacent to Defries Avenue (Building B).
• A new east-west road north of Buildings A and B.
• A north-south shareway between Buildings A and B off the new east-west road.
• A Common basement car park for 432 vehicles with access off the shareway.
• The provision of a 22 m wide area of land at the southern end and for the full width of the site for a future east-west boulevard.
• Staged subdivision.

2 For reasons essentially involving the proposal's failure to meet the relevantly applicable planning controls, mainly those involving urban design, I have decided that the development application should not be approved.

The site and its environs

3 The site is situated at the eastern edge of Victoria Park, a master-planned precinct within Green Square. It is located approximately 3 km south of the Sydney central business district and about 1 km to the east of the Green Square railway station. It has an area of 12,040 sq m, an eastern frontage of about 118 m to South Dowling Street, a western frontage of about 113 m to Defries Avenue and an east-west length of about 150 m.

4 Generally surrounding the site to the north, northwest and west, lands are variously vacant and/or the subject of development applications or development consents for various forms of residential/mixed use development. To the west beyond Defries Avenue there are various industrial/warehouse type developments and to the south of the site is a 6 m wide private access-way beyond which are commercial and industrial/warehouse type developments.

5 Following its receipt in September 2008 the application was advertised for an extended period between October and December and 120 submissions were received. These submissions in essence raise the following concerns:

• Failure to comply with the approved master plan.
• Overdevelopment of the site including excessive height and excessive floor space ratio.
• Environmental impacts involving unsatisfactory urban design, visual and transportation impacts.
• Overshadowing of neighbouring properties and loss of views.
• Loss of/insufficient open space.
• Impacts on the West Kensington Conservation Area (on the east side of South Dowling Street).

6 A number of the objectors gave additional evidence elaborating on the above matters when the hearing began on site.

7 Submissions were also received from the Minister for Planning and Landcom. The Minister was concerned that the development application (and others) was inconsistent with the endorsed Victoria Park Master Plan. Landcom expressed a similar concern, providing an independent architectural review of the application.

8 The City of Sydney Planning Committee has also expressed concerns that the development application has significant and unacceptable variations from the endorsed Victoria Park Master Plan. Other concerns involve:

• The lack of a relationship or address with the future east-west boulevard/public open space to the south.
• Likely non-compliance with State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development and overshadowing.

9 The Council's Design Advisory Panel considered that the development should comply with SEPP 65 and the Victoria Park Master Plan particularly the height controls. The tower design should be "distinguished" and possibly subjected to a design competition. It should have an appropriate "Green Star" rating.

10 In December 2008 the council advised the applicant that the proposal was not supported due to inconsistency with relevant planning controls and on 12 February 2009 the applicant appealed to the Land and Environment Court on the basis of the "deemed refusal" of the application.

11 In April 2009 the planning committee decided that the proposal "in its current form does not comply with core planning controls and is not supported". Determination of the application was deferred to give the applicant an opportunity to submit a revised proposal in accordance with the planning controls and a number of identified design principles. The applicant subsequently declined this offer and the matter thus proceeded to hearing.

South Sydney Local Environmental Plan 1998

12 Under South Sydney Local Environmental Plan 1998 the site is zoned 10(b) Mixed Uses. The objectives of the 10(b) zone in clause 21 of the LEP include: a mixture of compatible land uses so located as to minimise vehicular travel; residential development that will support the vitality of nearby commercial and urban village centres; and the incorporation of contemporary urban design principles.

13 Division 2 of the LEP deals with development at Green Square and cl 27A outlines the vision for this area, that vision being to transform it into an attractive, vibrant and sustainable urban place by capitalising on opportunities created by the location of the site between the Sydney central business district and the Kingsford Smith airport and the construction of the (now completed) Green Square railway station.

14 Clause 27B of the LEP identifies, in Schedule 4, the planning principles for Green Square that are required to be taken into consideration before any consent is granted. These principles relevantly deal with matters of: public domain, urban form, community life and quality of design. The latter of these principles is:

"Buildings and the public domain are to be of high quality in both design and materials. The public domain, being the network of public spaces, streets and squares, is to be designed as purposefully as the built form. Buildings are to support and be integrated into this public domain network to achieve coherence and purpose. Buildings are to be of high quality, articulated both in height and mass."

15 Importantly, clause 27C of the LEP provides that:

"(1) The council must not grant consent for development of any land within Green Square unless:
(a) There is a masterplan adopted by the Council for the development site comprising that land or within which that land is situated, and
(b) The development is consistent with the masterplan.
(2) The Council may waive the requirement for a master plan because of the minor nature of the development concerned, the adequacy of other planning controls that apply to the proposed development, or for such other reasons as the council considers sufficient.

16 Clause 28 of the LEP deals with built environment design principles and master plans and requires (taking into account that the site has an area well in excess of 5,000 sq m) that:

"(2) The council, before granting consent to the carrying out of development on land within Zone No 5 or comprising a site area of 5,000 square metres or more, must take into consideration any master plan for the land that is available to the council."

The Victoria Park Master Plan

17 In 1998 the Victoria Park Master Plan for land bounded by O’Dea Avenue, Joynton Avenue, and South Dowling Street (including the site) was submitted to the former South Sydney Council. Its key features are:

• Up to 611,700 sq m total gross floor area for residential (up to 1,800 dwellings), business, retail and community uses representing a maximum floor space ratio of 2.5:1.
• The total gross floor area includes 150,000 sq m of commercial and retail floor space in the block west of South Dowling Street.
• A range of building heights between 3 and 14 storeys but predominantly four-storeys with the eastern corridor (between Defries Avenue and South Dowling Street) having 6 storeys with 14 storey towers (figure 22-Building Height Plane).
• Major entry points at Joynton and O'Dea Avenue is marked with "slimline" towers.
• Preferred perimeter block courtyard building forms.

18 Also, in Section B3.3 that deals with building heights:

"In order to ensure appropriately scaled high-rise elements and to minimise their built form impact, residential towers over 8 storeys should be developed as point forms rather than slabs and shall have a maximum floor plate area of 700 square metres"

19 The 1999 Refined Master Plan builds on the Victoria Park Master Plan. It has particular regard to the design of the public domain and the bulk, form and character of development on sites. The building height provisions include the site within a 6 storey area that provides also for 14 storey towers. It also indicates opportunities for "slim line" towers to accent site corners or site entry points. Such landmark buildings can mark the site from both the interior as well as the exterior of the site.

20 For development in Defries Avenue ("Commercial Road") it refers to a variety of building types and expressions and:

"... the emphasis of the vertical is to be encouraged. “Slimline” buildings, which encourage cross ventilation, to be taller than they are wide, to have a common profile for its entire length unless breaks in height correspond with to a separate but integrated volumetric parts; and to limit the amount of reflective glass to be used."

21 In 2003 further amendments to the master plan were sought and in November 2003 Council endorsed the following three principles:

• Changes to the building heights for three landmark/gateway towers. The southern tower (the south end of Victoria Park) shall be limited to a maximum of 65 m above the existing ground level and the northern tower (at the north end of Victoria Park) limited to a maximum of 80 m above existing ground level;
• Changes to the land use mix; and
• Provision of off-street parking that exceeds current rates specified under South Sydney Development Control Plan No.11.

22 The master plan also requires that residential towers over eight storeys "should be developed as point forms rather than slabs" and shall have a maximum floor plate area of 700 sq m.

South Sydney Development Control Plan 1997: Urban Design

23 The South Sydney Development Control Plan 1997: Urban Design - Part G Special Precinct No 9 Green Square is applicable with the site being located within the Victoria Park neighbourhood. The objectives of the DCP for this precinct include: the establishment of a strategy for the long-term development of Green Square; and the provision of detailed design principles and a public spaces and streets layout.

24 According to the DCP's Urban Strategy map the site is subject to the following notations:

• Along the eastern boundary of the site (South Dowling Street): "buildings with buffer zone characteristics"
• Along the southern boundary of the site: "North-South/East-West open space/water corridor" and "Minor Through Roads (mostly district/local traffic)".

25 Section 2.7 of the DCP describes the desired future character of the Victoria Park neighbourhood including:

"3. New development provides a variety of housing and non-residential building types including 3-4 storey townhouses, eight storey multi-unit residential and commercial buildings and slim-line towers above lower scale buildings along the eastern edge."

26 Section 2.7 also requires that the predominant activities in Victoria Park should include:

"1. Predominantly medium to high-rise residential...
2. Active mixed uses such as cafes, a few small shops and community uses along major street frontages, parks and plazas… "

27 Section 3 deals with the Green Square urban framework and identifies a number of relevantly applicable principles:

"2. Gradation of height throughout Green Square to achieve a diverse yet cohesive urban form, characterised by clusters of buildings of uniform and variable height..."
"4. Emphasis on mid-rise block edge and "slim line" tower urban form in major redevelopment precincts to support clear definition of the public domain."
"6. Development of an urban form that is compatible with existing neighbourhoods, items of environmental heritage and other identified significant built form elements"

28 Map 1: Green Square Proposed Streets and Street Closures shows a "Potential Boulevard 36m" adjoining the site to the south in the location of the above-mentioned east-west open space/water corridor. Part 2.3 of the DCP describes this east-west boulevard as a low speed, pedestrian priority access street serving the town centre retail and commercial uses that, at its eastern end would function as a distributor to the new residential areas. Similarly in part 2.4 the boulevard is described as a major movement and activity corridor with active mixed uses at street level that are enhanced by the provision of interconnected community and cultural facilities.

29 Map 2: Green Square Public Transport Routes identifies this Boulevard as a "proposed public transport route". Map 4: Green Square Open Space identifies this same area as "proposed open space".

30 Part 3.2 - Built Form and Map 6: Floor Space Ratio provides a base floor space ratio for the site of 1.5:1 although a maximum floor space ratio of 2.5:1 can be achieved if material public benefits over and above Section 94 (of the Environmental Planning and Assessment Act 1979) requirements are provided. Map 7: Height provides for a maximum height of 18 m for the site.

State Environmental Planning Policy No 65

31 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development is applicable to the proposed development. SEPP 65 aims to improve the design quality of residential flat development by the application of various Design Quality Principles. These principles are aimed at the creative process of generating "good design" by considering matters such as scale built form density landscape and amenity in the context of desired future character. The desired future character is, in this case, to be found in the LEP, the DCP and the master plans. The Residential Flat Design Code supports the Design Quality Principles in SEPP 65 and relevantly contains controls dealing with: solar access; open space; and building separation.

Expert evidence

32 On behalf of the respondent Council expert evidence was provided by: Mr M. Harrison (town planning); Miss G. Morrish (urban design); and Mr J. Swan (town planning). On behalf of the applicant expert evidence was provided by: Mr J. Harrison (town planning); and Mr M. Neustein (urban design). The experts’ evidence came in the form of individual and joint reports and concurrent oral evidence.

33 In response to the notification of the application more than 100 submissions were received. A number of the authors of these submissions that mainly comprise objections to the proposal explained their concerns when the hearing began on-site. These concerns include:

• The failure of the development to comply with the Victoria Park master plan, including non-compliance with the building height controls and the failure to provide a landmark slimline tower. More particularly Building A would not be slimline but instead would be "fat".
• If approved the development would set an undesirable precedent resulting in further non-compliances with the master plan
• The amount of floor space in the development is excessive resulting in an overdevelopment of the site.
• The architecture is not aesthetically pleasing and does not comprise good design as required by the master plan.
• The tower would be readily apparent when viewed from West Kensington and would overshadow parts of that suburb. In this context there is an insufficient set back from South Dowling Street.
• Loss of employment opportunities if the development does not proceed.

34 The council's contentions as contained in the Statement of Facts and Contentions extend over five pages under the following headings:

• State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development.
• South Sydney Local Environmental Plan 1998.
• South Sydney Development Control Plan 1997: Urban Design - Part G Special Precinct No 9 Green Square.
• Victoria Park Refined Master Plan.
• Sydney Airport Corporation.
• Public Interest.

35 As for the Sydney Airport Corporation’s concerns, Air Services Australia has withdrawn its objection and concerns about interference with airport radar are no longer pressed.

36 Early in the proceedings the respondent provided to the Court a "Summary of Issues in Point Form" comprising 19 separate issues although at least some of these overlap one another. In essence these issues involve matters of urban design including the requirements of the applicable planning controls and the master plan as follows:

• Is Building A "slimline" and is it an appropriate urban design response for this landmark site?
• Is Building B predominantly six storeys in height?
• Does the development comprise "high design" in terms of building articulation, modulation and architectural innovation?
• Should Buildings A and B have a 60 m separation?
• Are there adverse visual impacts when the development is viewed from the Kensington Conservation Area?
• Is the floor space ratio of the development excessive?
• Does the development appropriately relate to likely finished ground levels in the public domain?
• Should the Defries Avenue frontage be activated including at the southwest corner of Building B?
• Would the proposed Southern Boulevard be unacceptably overshadowed?
• Is the proposed landscaped setback from South Dowling Street adequate?
• Is it appropriate to provide car parking below the proposed new road and shared accessway taking into account the need to provide deep soil planting for street trees and the provision of infrastructure?
• Do the proposed dwellings achieve a sufficient level of solar access?

37 I propose to deal with what I consider to be the most significant of these issues under the following headings: building height and separation; floor space ratio; the east-west boulevard; activation of Defries Avenue; landscaped setback of South Dowling Street; landscaping generally; and vehicular and pedestrian access.

Building height and separation

38 Section B3 of the master plan deals with the built environment that is to have an "appropriately scaled built form within the public and private domain". More particularly the refined master plan identifies the location of Building A as a "major city gateway" and "potential location of (one of three) landmark buildings". It stipulates for the landmark/gateway "southern tower" a maximum building height above the existing ground level of 65 m.

39 As described above Building A has an actual building height of 71 m. Seemingly, this results in a 6 m exceedence of the master plan requirement and amounts to the equivalent of about two storeys.

40 However in Section B3 of the master plan, height is to be "measured from average ground level to the underside of the ceiling of the upper most habitable room". On this basis Mr J. Harrison calculated the height of Building A to be 67.65 m, an exceedence of 2.65 m - the equivalent of a little under one storey.

41 Both Mr Neustein and Mr J. Harrison were of the opinion that the proposal complies with the height controls. Mr M. Harrison accepted that Building A could be taller subject to a "design excellence" process. In these circumstances I am satisfied that an exceedence of the height control of 2.65 m above the 65 m maximum is of no determinative significance. Moreover I expect that such an exceedence would be barely, if at all, noticeable to a casual observer.

42 Apart from the three landmark/gateway tower buildings the master plan provides for a range of building heights of 6 storeys with 14 storey towers within the "eastern corridor" between Defries Avenue and South Dowling Street. (The site is situated at the southern end of this corridor). Building B is part 8 storeys, part 13 storeys and part 14 storeys. No part of this building is 6 storeys.

43 According to Ms Morrish the master plan requires within the corridor, development that has a predominant 6 storey height requirement with, at important locations (such as corner sites) 14 storey "punctuations". She did not accept that the master plan facilitates, as is proposed, the majority of the site being developed in the order of 12-14 storeys and more. She also emphasised the need to limit the number of 14 storey buildings such that they would not detract from the effect of the taller gateway tower buildings. Consequently a significant separation between the tower building (Building A) and the 14 storey building (Building B) is required.

44 Similarly Mr Swan emphasised the master plan requirement that development in the corridor that includes this site is to be predominantly 6 storeys with occasional 14 storey towers is not met by the proposal.

45 In response Mr J. Harrison acknowledged that to achieve consistency with the master plan there would need to be a reliance on future development in the remainder of the Victoria Park corridor. By this I understand him to mean that at least some 6 storey buildings would need to be constructed in the corridor to the north of the site. In this context Mr M. Harrison insisted that a further detailed master plan was required to show how "buildings will be massed across the wide area". Mr Neustein pointed out that the master plan did not provide any restriction on the extent of 14 storey buildings and there is no mention of the concept of "occasional".

46 In my opinion the master plan does not require that this or indeed any other site (as distinct from the corridor as a whole) be required to be predominantly six storeys. Instead the height requirements (apart from the landmark/gateway tower buildings) are to be imposed throughout the South Dowling Street (Victoria Park) corridor. This means that some sites (depending on size, configuration and location) could be wholly developed with 6 storey buildings, others with 14 storey buildings or some with both. Hence in theory this development, that does not comprise any 6 storey buildings at all, could potentially, eventually achieve compliance with the master plan. This would be subject to other sites to the north being developed predominantly with six storey buildings to achieve the master plan's intent.

47 However because there are no plans (for example a further detailed master plan as suggested by Mr M. Harrison) to show how other sites to the north should be developed so that when considered together with this proposal, consistency with the master plan would otherwise be achieved. This is not something upon which I can or should speculate and as a consequence I have not been persuaded that compliance with the predominantly 6 storey requirement of the master plan would be likely to be achieved.

48 I also accept Ms Morrish's contention that the master plan should be interpreted such that the number of 14 storey buildings should not dominate but be limited to appropriate locations. Importantly they should not detract from the effect of the taller gateway tower buildings. In this regard I can understand and see merit in her suggestion that in order to meet the master plan requirement for this site a 14 storey building would be better located at the Defries Avenue frontage with a significant separation distance between it and the gateway building (Building A).

49 The 14 storey element of Building B is to be separated from Building A by about 20 m and will appear for the most part to be 13 or 14 storeys above a footprint of more than 1,800 sq m. This will undoubtedly detract from the master plan's clear intended "landmark" effect of the intended gateway tower building. Also, Building B, being taller than 8 storeys is plainly (when viewed from the north and south) more like a "slab" than a point form. It also has a floor plate in excess of 700 square metres. As Miss Morrish explained this building would be out of scale and having a majority height of 12-14 storeys, and these elements of this building are "hardly towers"

50 It was not in dispute that the master plan requires a "slimline" landmark building in the location of proposed Building A. Such a building is encouraged to display an "emphasis of the vertical" and be "taller than they are wide". Plainly this building is taller than it is wide but does it meet the tests of vertical emphasis and slimline as referred to in the master plan and the DCP?

51 Miss Morrish said that Building A is not "slimline". Instead it is quite squat and cannot be considered to be slim. Perception of slimness is a relationship to height and breadth and to appear slim the height needs to be considerably greater than that 2:1 relationship with the width. She also refers here to the Residential Flat Design Code that requires a "not unrealistic" 18 m maximum building depth (the building's footprint is about 35 m x 30 m (average)) that, if complied with, would produce a far more elegant solution.

52 Mr Neustein was of the opinion that the 18 m maximum depth was unrealistic and is not justified for high-rise residential development. In his opinion the proposal's height to width ratio of 2.2:1 to 2.9:1 is appropriate. He also referred to other buildings in Green Square that have similar proportions.

53 Mr M. Harrison explained that a key element in determining whether a tower building is "slimline" is its floor plate referring to the master plan's maximum floor plate of 700 sq m. Because the floor plate is in excess of 850 sq m a slimline tower is not achieved. Conversely, Mr J. Harrison believes that there is no requirement in the master plan for towers to conform to a 700 sq m floor plate but did acknowledge that the area of the floor plate is one element that influences whether a building is "slimline". In this regard the floor plate is not inconsistent with the 800 sq m maximum floor plate in the recently exhibited Design Excellence Development Control Plan. Taking into account that the building is seen in the round and taking into account its height, he believes that it meets the "slimline" test.

54 Whilst there are other buildings in Green Square that might exhibit similar proportions to those of Building A, in my opinion this is not the relevant test. Plainly it would have been of considerable assistance if the master plan and/or the otherwise applicable planning controls were more particular in their reference to terms/phrases like "slimline", "emphasis of the vertical" and "taller than they are wide". Despite this, on balance, I have been persuaded by the evidence of Mr M. Harrison and Miss Morrish and do not accept that because the building's vertical proportion is to be greater than its horizontal proportion this makes it "slimline".

55 Whilst I recognize that the 700 sq m floor plate was originally introduced concurrently with the 14 storey height limit and before the 65 m maximum for the landmark/gateway tower was introduced I nevertheless accept that it continues to be applicable, not having been deleted from the master plan. The fact that a 700 sq m floor plate for a 14 storey building produces a different proportion by comparison with the same floor plate for a 65 m building makes no relevant difference to the applicability of this requirement. Despite this, the non-compliance with this requirement is not by itself determinative of the "slimline" test that is more to do with proportions. In this context and acknowledging what I have already said about the 700 sq m floor plate requirement, I am inclined to accept the proposition that the a 65 m tall building on a 700 sq m floor plate would be more likely to produce a "slimline" building that would have an "emphasis of the vertical"

56 I also agree with Miss Morrish that the design of the building’s facades does not overcome the more fundamental problem of its proportions. Whilst Building A has some vertical elements it also has a number of horizontal elements and I doubt that, even if the building's external presentation were to entirely comprise vertical elements, this would solve the problem. .

57 In concluding for the purposes of the master plan and the Green Square DCP that, when viewed in the round, Building A does not comprise a "slimline" tower I have taken into account not only the square-on views of the building, but also the oblique views where the building would present as being up to 40 m or 50 m wide further reducing its height to width proportions. Also, to the extent that I am able to express a subjective opinion, I do not accept that the photomontages depicting Building A show it to be a "slimline" building.

58 I also accept Mr Swan's interpretation of the master plan that tower buildings " be structured from north to south" means that the floor plate of the building is narrower when viewed from the south by comparison with when viewed from the east. This supports the concept of a "slimline" building when viewed from South Dowling Street and could excuse a building that when viewed from the east is something less than this. However the proposal simply does not respond to this concept, its east-west dimension being at least the same as if not greater than its north-south dimension.

59 A further problem that contributes to the failure of Building A to fulfil its purpose as a landmark "slimline" tower is the proximity of the 14 storey element of Building B. The refined master plan deals with building heights and requires that the separation of towers should be in accordance with the objectives of the DCP. These objectives can be found in section 3.2 .3 and in turn are informed by, the particular requirement of a minimum separation of 60 m between buildings over 10 storeys. In this context Mr Neustein disagreed with Miss Morrish in relation to the need for the 60 m separation between the two buildings although he conceded that a greater separation would have been preferable. (In this context I also note that the two buildings almost comply with the separation distance of 24 m for amenity purposes as required by the Residential Flat Design Code).

60 Whilst I am not so sure that strict compliance with the 60 m separation requirement is essential, the proposed 20 m separation is certainly insufficient, especially as the apparent visual separation would be significantly less than this when the two buildings are viewed together from the southeast in South Dowling Street. This would result in the two buildings tending to read together, further reducing any landmark and slimline qualities that Building A might otherwise have had. This is a significant deficiency taking into account the importance of the streetscape and skyline presentation of the development when viewed approaching the city from the south along South Dowling Street.

61 Finally here whilst the proposed buildings can, on one view, be considered to be of good architectural quality in their appearance this is not sufficient to overcome the inconsistencies with the master plan and the Green Square DCP.

Floor space ratio

62 As indicated above the master plan provides for a maximum floor space ratio of 2.5:1 across the whole of the master plan area. The DCP includes a base floor space ratio of 1.5:1 with a maximum of 2.5:1 where a major public benefit such as the dedication of land is involved. The proposed floor space ratio at 3.09:1 (calculated on the basis that the land area of Defries Avenue within the site can be included) exceeds these maxima.

63 Plainly given that the floor space ratio maximum applies across the master plan area this can and I understand has been exceeded on individual sites. Mr J. Harrison supports this approach noting that there is nothing in the master plan that puts a cap on the floor space ratio for the site. According to Mr Neustein it is desirable to achieve the overall floor space ratio for Green Square and in particular in Victoria Park.

64 Mr M Harrison conceded that the South Dowling Street corridor could, by comparison with the remainder of Victoria Park be developed to a higher density. However he was concerned that a detailed master plan had not been prepared to allocate floor space ratio to individual sites within the corridor that includes the appeal site. Absent such a plan the proposed development does not comply with this control. Similarly Miss Morrish and Mr Swan believed it to be inappropriate for the site to be granted an increase floor space ratio on the basis that future development nearby may result in a complying floor space ratio being achieved.

65 Whilst I acknowledge that the approach advocated by the applicant's experts is reasonable I agree with Mr M Harrison and am concerned that the master plan has not been amended so as to facilitate, where appropriate, different densities on different sites, taking into account roads and public open spaces where no buildings are to occur. In this regard I expect that the proposal's floor space ratio may not be unreasonable.

66 However if this development were approved as is proposed this would place a future constraint on subsequent development applications and this needs to be properly explored. It may also be necessary as a consequence of the other concerns that I have (e.g. the slimline tower, building heights and separation) to reduce the total floor space within the development. I thus conclude that the floor space ratio requirements of the master plan and the DCP have not been satisfied.

The east west boulevard

67 As noted above the proposal includes the provision of a 22 m wide area of land for the purposes of a future east west boulevard in accordance with the Green Square DCP. Development fronting such a boulevard is required to have an "active frontage" in the manner of mixed uses at street level.

68 The council's experts are concerned at the absence of the necessary active frontage and raise a number of matters as to the effect of the proposed buildings on (overshadowing) and relationship to (visual impact, surveillance and access) this proposed boulevard.

69 According to Mr M. Harrison the wall height fronting the proposed boulevard is too obtrusive and will thus adversely affect its amenity. A different configuration including a 14 storey building on the corner of Defries Avenue and a lower building between it and Building A would give the best outcome. Miss Morrish had similar concerns, referring to Building B as "slab" like. She was also concerned that the raised lower ground floor creates a false site level (to screen the basement car park) and in part exceeds, by as much as 2.3 m, the 1.2 m maximum stipulated by the Residential Flat Design Code. Mr J. Swan found this to be completely unacceptable. One consequence of this exceedence is that the ground level units will be too high to offer reasonable passive surveillance of the public domain. Miss Morrish also noted that the heavy overshadowing of the Boulevard means that it would not be ideal as a major communal area.

70 Mr Neustein noted that the design of the proposed boulevard as a public space has not been established and that the proposal is similar to a number of other nearby developments where the ground floor level is higher than the adjacent ground level. Mr J. Harrison explained that the interface can be appropriately treated and that taking into account the proposed outdoor terraces that overlook the public domain the outcome would be appropriate. He also acknowledged that the proposed buildings would overshadow the open space within the proposed boulevard. Despite this, not all areas of open space need to achieve the same levels of solar access as for example is achieved by nearby parks that fulfil major recreation needs. Moreover the boulevard is a linear link likely to be used in a transient manner with little recreational function. The arrangement is in these circumstances acceptable.

71 There can be little doubt that the proposed development will, at the winter solstice, substantially overshadow the proposed boulevard for much of the day. Indeed even a 6 storey building (as permitted/encouraged by the master plan) across this site would have a similar effect. (I have calculated that a 6 storey building would, at noon at the winter solstice, cast a shadow of about 30 m). Taking this into account and accepting as I do Mr J. Harrison's evidence in relation to the likely use of the boulevard, I do not find this aspect of the proposal to be fundamentally problematical.

72 Despite this I expect that a different design that includes greater separation between the buildings that run north-south rather than east-west would provide better solar access to at least some parts of the boulevard. This could also overcome at least some of the concerns of Miss Morrish as to the bulky "slab" like appearance of Building B.

73 Also, a different design for Building B at ground level (including a more detailed consideration of the design of the boulevard, necessarily in conjunction with the council) could overcome the concerns about surveillance of the boulevard from the lower level dwellings and the basement wall projection.

74 Together these matters contribute to the unsatisfactory relationship between the boulevard and Building B. In this regard I emphasise the need for the design of the boulevard to be progressed so that a future application for the development of the subject site can be more carefully and appropriately integrated. In this regard I again note the comments of Miss Morrish as to the need for a better interrelationship and access between the proposed development and the boulevard. This also includes the master plan requirement for landscaping within the boulevard.

Activation of Defries Avenue

75 The master plan and the DCP variously require active street frontages for development throughout Victoria Park. This includes the site's Defries Avenue frontage and even though it may not carry much through traffic I accept that it is entirely reasonable that development of this site should achieve a reasonable level of activation.

76 At ground level where it fronts Defries Avenue, Building B has two dwellings and an entry lobby (one of two entry lobbies into this building). Behind the ramp to the lobby on the south west corner there is an electricity substation and one of the building's garbage rooms.

77 Miss Morrish did not believe that this level of activation was sufficient and was particularly concerned about the southwest corner of the building (where Defries Avenue intersects with the east-west boulevard) that would be an ideal location for a commercial or retail use. Mr Swan was concerned about the substation that should be integrated within the design rather than being simply an " add - on". Mr M. Harrison essentially agreed and identified examples of how such integration could occur.

78 Mr J. Harrison believes that the level of activation was sufficient and that the location of the garbage room and the substation were appropriate. It was his opinion that any cafe or retail use on this, the south side, of the building would be inappropriate and better located on the south side of the boulevard where it can take advantage of a northern orientation. He also pointed out that there are a number of vacant retail premises within Victoria Park.

79 The site inspection revealed that there exists in this locality a number recent developments with substations and garbage rooms that address the street and one can reasonably assume that these were located to meet the relevant authorities' requirements. Mr J. Harrison explained that the proposed location of these facilities in Building B was logical and that a response to these concerns could include landscaping and screening.

80 In relation to the activation of Defries Avenue I am inclined to accept the applicant's evidence taking into account that there is to be provided a pedestrian entrance to the building that should provide considerable activation. This could however have been improved by the provision of some residential floor space that is capable of being converted for retail or cafe purposes when demand warrants. Conversely I am quite sure that a better location/design could be found for the garbage room and substation especially taking into account their location fronting the boulevard. This matter again raises the need for the progressing of a design for the boulevard so that appropriate integration can take place.

Landscape setback off South Dowling Street

81 The refined master plan requires along South Dowling Street between O'Dea Avenue to the proposed east-west boulevard a "major landscaped element" of variable width, taking into account topography, pedestrian access and the built form of development. The more particular planning principles require a sculptured landscape edge where integrated development is to front South Dowling Street. It requires "structured landscaping (10 m minimum width) opening into development with playful but disciplined language" not only for the South Dowling Street frontage but also where the site adjoins the proposed boulevard. (I expect that future landscaping within the boulevard itself can achieve this latter requirement). Street tree planting is also required. The Green Square DCP requires that this area should have "buffer zone characteristics".

82 The 1999 masterplan requires a maximum landscape strip of 10 m. Mr J. Harrison points out that this requirement is met by the proposal. Mr Swan disagrees noting both controls that are consistent with each other and require a built form that provides a set back to South Dowling Street of 10 m thus enabling the provision of suitable landscaping. Because a 10 m setback has not been provided the proposal does not meet the requirement of the master plan and also does not provide a suitable presentation to South Dowling Street.

83 The tower component of Building A is variously set back from South Dowling Street between 9 m and 13 m. The basement car park that projects out of the ground by as much as 2 m is variously set back between 7 m and 4 m across the full width of the site (except for the 22 m boulevard strip). The setback area between the projecting basement and the site's frontage is, in part, to be filled/graded to reduce the apparent height of the basement above the ground. The area on top of the basement that I estimate to be at least half of the proposed landscape setback area is to be landscaped utilising a large planter box (ie placing soil on top of the basement car park). According to the landscape plan the area between the basement wall and the boundary is to have "new native tree planting within deep soil zone to reflect the existing character".

84 Mr M Harrison believed the landscaping to be perfunctory and Mr Swan said that it does not provide a suitable presentation to South Dowling Street. Miss Morrish thought it to be a poor solution with no mounding or significant landscaping to deal with the visual impact of the traffic on the apartments. Mr J. Harrison was of the opinion that that the landscaping as proposed is acceptable although Mr Neustein believed that a more structured approach to the South Dowling Street landscaping may be justified and could be provided.

85 Whilst I expect that robust tree plantings could occur in the deep soil areas between the basement car park and the South Dowling Street frontage, I agree with the respondent's experts that what is proposed is unsatisfactory. The setbacks of Building A would have been satisfactory had the setback area not been so affected by the basement car park where there is far too much reliance on planting in constructed planter boxes. I therefore have considerable doubt that, the buffer zone characteristics as required by the master plan and the DCP would be achieved by this design.

Landscaping generally and the " New Street"

86 As already indicated the basement car park extends into the landscape setback area to South Dowling Street. It also extends beyond the footprint of both Building A and Building B to the extent that virtually the entire site (except for the 22 m east-west boulevard and the proposed Defries Avenue dedication) is subject to excavation for the basement. Hence other than the deep soil planting areas adjacent to South Dowling Street no such areas are otherwise available on the site for this purpose. Landscaping in various sized constructed planters (above the basement) is nevertheless to be provided in addition to that provided adjacent to South Dowling Street mainly to the north of Building A within the shared way and adjacent to the "New Street" to the north of Building B.

87 Miss Morrish was concerned at the limited availability of deep soil planting opportunities and opportunities for rainwater run-off being treated in retention swales. As a consequence if tree planting is appropriate in other locations on the site (other than along the South Dowling Street frontage) this can only occur in the proposed 600 mm deep planter boxes, although it might be possible to have deeper planters that project into the basement below (Mr Neustein described these as "concrete boxes in upper car park basement"). This she explained is a poor outcome particularly for new streets in terms of landscape quality referring here to the proposed new street. Mr Swan noted that the master plan relevantly identifies a street typology for Victoria Park that has a character that includes street trees within deep soil zones. The provision of landscaping in planter boxes is thus unacceptable, as it does not enhance the character both identified for and built within Victoria Park.

88 Mr Neustein responded by explaining that car parking under complete sites is a common feature of development in Victoria Park and that a satisfactory landscaping outcome can be achieved. He nevertheless agreed that it may not be consistent with street tree planting in Victoria Park. Also, rainwater run-off can be collected and used to water on-site plantings. Mr J. Harrison noted that the proposed new east-west street (designed so as to look like a lower order public street) was not a requirement of the master plan or the DCP and was as proposed acceptable. However if in-ground planting is required this could be accommodated by "adjusting some areas to accommodate deep soil planting for street trees".

89 Mr J. Harrison also notes that the east-west road could be dedicated in stratum an approach taken on a nearby site at Broadway. Mr Swan says that this approach is not acceptable because roads should not include basement car parking underneath. It also raises significant potentially problematical issues including maintenance, provision of deep soil planting and the long term right for important public infrastructure to be installed underneath the road.

90 I could accept that, following a detailed engineering design that provides for the installation of services and landscaping, a stratum arrangement for this road could be satisfactory. Similarly if dedication is not required, a landscaping outcome of the kind contemplated by Mr Neustein might be possible. However I accept that for a street of this kind (even if it is to be a "lower order" street) warrants appropriate landscaping including significant trees and that in the longer term, trees planted in deep soil is a preferable and more ecologically sustainable arrangement. This becomes more important if the road is to be dedicated to the council who would then assume responsibility for maintenance of the landscaping. Such an outcome would also be more consistent with the master plan requirement that below ground car parking be placed in the centre of each block development.

91 In the circumstances I find that the landscaping arrangement for the new road to be unsatisfactory. For similar reasons (and taking into account what I have said about the landscape setback of South Dowling Street) I find that there is an insufficiency of deep soil planting across the site generally although this does not mean that all landscaping must be of the deep soil kind.

92 Pedestrian access to one of the two entrances to Building B and to Building A variously involves use of the 17 m shared way between these two buildings. This shareway is the only way for cars to get to the only entrance to the car park for the entire development (432 car spaces). It will also be used to gain access to a garbage room and loading area.

Miss Morrish was concerned that this shareway was compromised and would have reduced amenity resulting from its use for access to the car park and the loading and garbage facilities. Similarly Mr Swan believed that Building A should have a good street presence and should be located off a good pedestrian friendly environment. It does not achieve this. Mr M Harrison believed it would deactivate the ground floor level of Building A. He also suggested that Building A and Building B should have their entrances off the proposed boulevard.

93 Mr Neustein did not agree explaining that traffic levels are unlikely to diminish the amenity of this area. Mr J. Harrison said that Building A has a sense of entry with the lobby facing the shareway, that has a width that is consistent with the width of new local streets in Victoria Park. Only pedestrians entering Building A would have to cross the shareway

94 Plainly the shareway will generate significant pedestrian and vehicular activity and I agree with Miss Morrish and Mr Swan that the resultant environment would be unsatisfactory. Although Building A will have a sense of entry, I doubt that it will have the kind of street presence that Mr Swan advocates and I agree should be provided. More critically I agree that the use of the shareway that provides access to a basement car park of the size here proposed where that shareway is to be used, as access to Building A that contains some 200 dwellings, would produce an unacceptable level of conflicts between pedestrians and vehicles (over 110 peak vehicle movements per hour) and would thus be inappropriate.

Internal amenity

95 The respondent also raises the issue of SEPP 65 compliances, there being a number of concerns in relation to internal amenity and facilities. These mainly comprise: excessive corridor length; inadequately sized courtyards/balconies; building separation; and lack of storage. In addition it is said that the separation distance between Building A and Building B does not meet the requirements of the Residential Flat Design Code. Given that I have decided that the proposed development is unsatisfactory it is unnecessary for me to examine these matters in any detail I nevertheless make the following comments.

96 The Residential Flat Design Code relevantly requires a building separation of 24 m for buildings above 9 storeys. The separation between Building A and Building B is 20.1 m. Whilst I do not know why this requirement has not been met I understand that the experts agree that there would be no unacceptable amenity consequences.

97 In relation to corridor lengths I understand the main concern was in relation to the corridors in Building B where Miss Morrish said that these were excessively long. In this regard I accept Mr J. Harrison's evidence that as there are two access/lift/entry cores, this effectively halves their length.

98 The residential flat design code requires a minimum of 25 sq m of open space (ie courtyards and balconies) whereas many of the dwellings within the proposed development only have 18 sq m. Whilst many of the smaller open space areas are functional and have a northern orientation there does not appear to be any good reason why there is such a significant non-compliance.

99 As for storage areas Miss Morrish was concerned that many of the dwellings do not comply with the residential flat design code requirement. Mr J. Harrison believes that the requirement could be met taking into account the proposed basement storage areas and storage opportunities within the dwellings including using the study/media rooms. He may well be correct however I find it difficult to accept an approach where otherwise habitable rooms originally intended for living purposes be simply turned into storage areas. Plainly this aspect of the proposal can and should be rectified.

100 The residential flat design code requires that the living rooms and private open spaces of 70% of dwellings should receive a minimum of three hours direct sunlight between 9am and 3 pm in midwinter. According to Miss Morrish about 40% of the dwellings meet this standard. According to the applicant, 67% of dwellings receive a minimum of two hours of solar access between 9am and 3 pm. Mr Neustein argued that the standard was not appropriate for tower buildings and was not achievable. Miss Morrish disagreed explaining that she was aware of a number of high-rise buildings that had achieved the standard. In this regard given that this is a site that is unaffected by overshadowing and whilst understanding Mr Neustein's argument I expect that a better outcome is possible.

Conclusions

101 The abilities of the applicant's architects are not really in question here, these being the architects that designed a number of buildings within Victoria Park, which have won design awards. By this measure one could reasonably expect that the present proposal has been designed to a similar standard. However the application of such skills does not overcome the fundamental need to take into account and appropriately respond to the applicable planning controls including the master plan, in order to achieve the design excellence that is sought by these controls. As discussed above there are a number of aspects of the planning controls where the proposal fails, to varying degrees, to properly or sufficiently respond to these controls.

102 I accept that the requirement in clause 27C(1) of the LEP that development be consistent with the master plan does not require strict compliance but does require compatibility or harmonious coexistence. For the reasons given in this judgment in relation to the various provisions of the master plan I am not satisfied that the requisite compatibility has been achieved by this development.

103 Clause 27C(2) of the LEP enables the Court to waive the requirements of the master plan if: the development concerned is minor; the adequacy of other applicable planning controls; or other sufficient reasons. As for the first of these matters, it is plain that a development containing 400 dwellings is not minor. In relation to the second of these matters, I am satisfied that the other planning controls including the LEP and the DCP do not deal with the planning and urban design considerations to the extent that they are dealt with in the master plan. In relation to the third of these matters I heard nothing to suggest that there might be some other reason that might be sufficient to waive the requirements of the master plan.

104 Hence, having concluded that the development has not achieved the requisite compatibility with the master plan, clause 27C(1) of the LEP requires that consent must not be granted.

105 More generally considering together the requirements of the master plan, the LEP and the DCP, for the reasons given in this judgment I conclude that the proposal, being inconsistent with these controls, does not represent orderly development and I have thus decided that on its merits the development should not be approved.

106 For the above reasons I have decided that the orders of the Court are:

1. The appeal is dismissed.
2. The development application for a residential flat development at 899 South Dowling Street, Zetland is determined by refusal.
3. Exhibit A is retained.

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T A Bly
Commissioner of the Court
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