Meriton Apartments Pty Ltd v Sydney City Council

[1998] NSWLEC 148

Land and Environment Court

of New South Wales

CITATION:	Meriton Apartments Pty Ltd v. Sydney City Council [1998] NSWLEC 148
PARTIES:	APPLICANT Meriton Apartments Pty Ltd RESPONDENT Sydney City Council
FILE NUMBER(S):	10556 of 1997
CORAM:	Lloyd J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979,ss 90, 97 Sydney Regional Environmental Plan No 26 - City West, cll 11, 15, 18, 26A, 34
CASES CITED:
DATES OF HEARING:	15/12/97, 16/12/97, 17/12/97
DATE OF JUDGMENT:	02/16/1998
LEGAL REPRESENTATIVES:	APPLICANT J J Bingham (Solicitor) Deacons Graham & James RESPONDENT P J McEwen SC Abbott Tout

JUDGMENT:

This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (Athe Act@) against the deemed refusal by the respondent of a development application to demolish an existing building and erect a ten storey residential flat building containing 341 flats together with commercial and retail floor space at the street frontages and parking for 441 vehicles.

The subject land is rectangular in shape. It is known as 55-67 Jones Street, Ultimo and has frontages to Jones Street, William Henry Street and Wattle Street. The fourth boundary adjoins the Ultimo Public School. The land has an area of 9,152 square metres. There is a considerable fall from the eastern (Jones Street) frontage to the western (Wattle Street) frontage of about 14 m. The warehouse which is proposed to be demolished occupies the whole of the land.

The proposed building is to be built to the street alignment of Jones Street, William Henry Street and Wattle Street with a smaller wing facing the Ultimo Public School enclosing a central landscaped courtyard. The central courtyard is also to contain an enclosed 25 metre swimming pool, the roof of which will form part of the landscaping to the courtyard.

The Issues

As initially framed, the issues included questions of law raised by the applicant. At the commencement of the hearing, however, Mr J J Bingham, who appeared for the applicant, abandoned the two legal questions. This left for determination the following issues of merit which are raised by the respondent:

(1) The proposal does not promote a high quality residential development as encouraged by the principles of Sydney Regional Environmental Plan No 26 - City West (ASREP 26@);

(2) The proposal fails to comply with a number of principles and controls contained in the Ultimo-Pyrmont Urban Development Plan (1995 update) and draft amendments thereto;

(3) The proposed building is excessive in height, massing, and scale;

(4) The proposed building form fails to provide appropriate articulation and architectural modulation;

(5) The proposed building fails to provide a satisfactory level of residential amenity;

(6) The central courtyard fails to provide a sufficient quality of useable open space.

Issue 1: The proposal does not promote a high quality residential

development; and

Issue 5: The proposed building fails to provide a satisfactory level of

residential amenity.

These two issues are related and may be conveniently considered together. The subject land is within the City West area to which SREP 26 applies. The subject land is also within a Residential-Business zone under SREP 26. One of the objectives of the zone is:

ATo encourage a mix of land uses which is compatible with the achievement of a high quality residential environment and character; ÿ@ (cl 18)

Clause 11 of SREP 26 provides:

A11. Before granting consent to a development application relating to land within City West (whether or not within a Precinct), the consent authority must take into consideration the aim of this plan that development within City West should be consistent with the planning principles for City West set out in the Table to this clause.@

The Table to cl 11 then sets out a number of planning principles, including relevantly for the purpose of these two issues:

AEnvironmental Issues

Development in City West is to ensure a high level of environmental quality by addressing issues of air quality, noise levels, wind conditions, access to light and sunshine, privacy, soil conditions and water quality.

ÿ

Urban Design and the Public Domain

Development within City West is to enhance, complement and contribute to the development of the public domain in order to create a high-quality physical environment for access, enjoyment and recreation for residents and workers.

Development within City West is to contribute to a high level of residential amenity and convenience.@

The subject land is also within the Ultimo-Pyrmont Precinct under SREP 26. Clause 15 of SREP 26 provides:

A15. Before granting consent to a development application relating to land within a Precinct, the consent authority must take into consideration the aim of this plan that development within the Precinct should be consistent with the planning principles set out for the Precinct in the Table to this clause.@

The Table to cl 15 then sets out a number of planning principles, including relevantly:

Urban Design

ÿ

The heights and form of buildings are to take account of visual impact, solar access, wind impact and, where appropriate, the privacy of residences, in order to contribute to a high quality of environmental amenity in intensively used parts of the public domain and in residential areas.@

For the purpose of resolving these issues the questions are relevantly whether the proposed building achieves Aa high quality residential environment and character@; whether it ensures Aa high level of environmental quality by addressing issues of ÿ access to light and sunshine, privacy ÿ A; whether it contributes to Aa high level of residential amenity and convenience@; and whether in relation to solar access and the privacy of residences the form of building contributes Ato a high quality of environmental amenity@ in the residential area. It also seems that there is some overlapping of these issues with Issues 3 and 4.

Expert evidence was given for the respondent by Mr P A Mitchell, consultant town planner; Mr M Harrison, architect and town planner; Miss G A Morrish, architect; and Miss L M Sureda, town planner.

Expert evidence for the applicant was given by Mr G Zylber, consultant town planner; Mr P Spira, general manager and chief architect of the applicant; and Emeritus Professor G E Roberts, architect and town planner.

The expert evidence given for the respondent may be summarised as follows:

(1) The units facing William Henry Street and Wattle Street will be exposed to high levels of traffic noise, requiring the double glazing of all windows and doors facing those streets and reliance on air conditioning for ventilation. The amenity of the balconies facing those streets means that residents of those units will not have any quality private open space (Mr Mitchell).

(2) Many of the balconies in the internal corners facing the courtyard are too close to each other, some being only 5.2 metres apart and do not provide a sufficient level of privacy (Mr Mitchell). Moreover, some of the bedrooms in these locations are overlooked by the balconies of adjacent units (Mr Harrison). The attempt to overcome privacy concerns by recessing units creates an undesirably restrained outlook from the affected windows and balconies of the recessed units (Miss Sureda).

(3) Many of the balconies are too small, being less than 1.5 metres in depth as required by the Urban Development Plan, referred to under Issue 2. The AMCORD standard recommends a minimum depth of balconies of 2.5 metres (Mr Mitchell).

(4) An unduly large number of units (13-14 units per level) in the north-western corner are accessed from one long corridor. Too many apartments served by long corridors can be uncomfortable for people. A suitable maximum number of units served by a single corridor is 6-8 (Mr Mitchell and Miss Sureda).

(5) Solar access to south facing units is such that at no time will they receive direct sunlight. There are south facing units onto the courtyard and also onto William Henry Street. In the latter case the fact that this is a street which is subject to heavy traffic means that those units in particular would not provide a high quality residential environment (Miss Morrish and Miss Sureda).

The expert evidence given for the applicant may be summarised as follows:

(1) The quality of the building is appropriate and the units are of a high standard for this area (Professor Roberts);

(2) The building complies with the privacy controls relating to the minimum distance between habitable rooms under the Urban Development Plan, described under Issue 2. The problem of overlooking from balconies could be met by providing privacy screens (Mr Zylber). Mr Zylber accepts Mr Harrison=s suggestion, however, of a single apartment on both sides of the internal corners of the courtyard as being Aa sensible suggestion@. Similarly, Professor Roberts notes that the building complies with the privacy requirements set out in the Urban Development Plan.

(3) There is an average of 20.5 square metres of private open space per unit, in the form of gardens, courtyards, rooftop gardens and balconies, which is more than the minimum standard of 20 square metres per unit under the Urban Development Plan (Mr Zylber);

(4) The long corridor criticised by the respondent=s witnesses is in a security building, so that only the occupiers of units and their invitees could use it;

(5) In a >perimeter= development there will inevitably be some units having no direct sunlight. The majority of units will, however, receive direct sunlight at certain periods of the day (Professor Roberts). Mr Bingham submits, however, that there are many residential flat buildings, notably on the northern side of Sydney Harbour, which face south to obtain views, which thus obtain no direct sunlight and which are completely acceptable to the occupants thereof.

After careful consideration I have come to the view that this proposal does not satisfy the tests imposed by the relevant objectives and planning principles under SREP 26. I have come to this view for the following reasons:

(1) Although there are many units on the northern side of Sydney Harbour which answered the description of them by Mr Bingham, in most such instances those units enjoy the open expanse of views to the south. In the present case the south-facing units merely have an outlook across a street or across a courtyard to another building or to the same building. Some 29 units will have no direct sunlight in the winter months. They will have a poor level of residential amenity.

(2) Sixty eight units facing William Henry Street and Wattle Street will be totally reliant on air conditioning as a means of ventilation. The high traffic volumes of those streets will necessarily mean that windows and doors to those units must be kept closed. This is also, I think, a poor level of residential amenity.

(3) The problem of overlooking of the adjoining units at the internal corners of the courtyard and particularly the restrained outlook from those units which are recessed into those corners again suggests a poor level of residential amenity. This problem could be overcome by locating a single apartment on both sides of internal corners, as is suggested by Mr Harrison in his evidence.

(4) Although the amount of communal open space may comply with the quantitative criteria, the limited depth of many balconies suggests that those units are deficient in the provision of quality private open space. In my view those balconies should be increased in depth to comply with the AMCORD minimum recommended depth of 2.5 metres.

(5) The problem of the south facing units and of the units facing noisy street frontages and thus reliant on air conditioning can be overcome by designing units so that they extend from the street frontage to the internal courtyard. The respondent refers to a similar development at the former Crown Street Women=s Hospital site in Crown, Albion and Riley Streets, Surry Hills, where such a design has been successfully employed. In that case, the occupiers of units facing the street do not have to rely solely on air conditioning for the ventilation of their units. It also affords south-facing units with solar access. Professor Roberts concedes in his evidence that it would be an improvement to have Athrough units@ for at least the south-facing units fronting William Henry Street. Moreover, Professor Roberts further concedes that a design could be achieved with the majority of units as Athrough@ units.

In short, the subject proposed development does not achieve Aa high quality residential environment and character@, Aa high level of environmental quality by addressing issues of ÿ access to light and sunshine, privacy ÿ A, Aa high level of residential amenity and convenience@ nor, in relation to solar access and the privacy of residences, does the form of the building contribute Ato a high quality of environmental amenity@ as described in the relevant objectives and planning principles in SREP 26.

Since the proposal does not comply with the relevant objectives and planning principles under SREP 26 in the manner that I have described the appeal must necessarily be dismissed. Since the remaining issues were also argued, however, I should comment briefly thereon.

Issue 2: Non-compliance with principles and controls contained in the Ultimo-Pyrmont Urban Development Plan

Division 7 of SREP 26 refers to the preparation and use of urban development plans. It provides for the adoption by the Minister for Urban Affairs and Planning of a draft urban development plan prepared by the Director of his department or by the council of the area concerned (cl 36). An urban development plan is a written instrument which makes more detailed provisions relating to development within a Precinct than the regional environmental plan (cl 35). Before granting consent to development to which an urban development plan applies, the consent authority must take the plan into consideration.

An urban development plan for the Ultimo-Pyrmont Precinct has been adopted by the Minister (Athe UDP@). The principal objective of the UDP is Ato ensure that detailed planning and urban design principles and controls reflect and complement the principles and controls in the regional environmental plan to assist in achieving a built environment of a high standard in the Precinct@ (cl 1.3).

The UDP sets out specific controls governing such numerical standards as the height of buildings; the minimum separation distance between dwellings; the size of courtyards and the height of enclosing walls thereof; and the maximum percentage of courtyards which may be overshadowed at certain times. The proposed building complies with all of these numerical standards.

The UDP requires buildings to be generally built to the street alignment (cl 3.1). This requirement has in turn led to the adoption of the proposed buildings form. The UDP requires balconies to have a minimum depth of 1.5 metres (cl 4.1). As noted under the preceding issues, there are many balconies which do not have that minimum depth. There is one control, however, in the UDP relating to the facade treatment in particular, with which the building is said not to comply:

ABuildings should be modulated both in plan and in elevation and to develop a sense of depth in facade to articulate street edges. Long facades should be articulated by breaking the building into distinct segments and indented courtyards. Building detailing should incorporate patterned and textured treatment such as string courses, surrounds to openings and masonry detail.@ (cl 4.2)

The expert evidence for the respondent is that the proposed building does not comply with the principal objectives of the UDP in that it does not achieve a built environment of a high standard in the precinct (cl 1.3). Some of the criticisms have been mentioned under the preceding issues. Mr Harrison states that whilst the proposed building complies with most of the dimensional requirements of the UDP, it does not comply with the qualitative controls. As to cl 4.2, mentioned above, Mr Harrison is particularly critical of the facade treatment, referring to its bland facade. He states: AThe Meriton proposal simply lines up same sized windows above one another with an occasional vertical shadowline caused by a nominal reveal or setback@. He also refers to the Agrossly unacceptable anonymity and monotony in the facade of the building@.

Similar criticisms are made by Miss Morrish; the building does not comply with cl 4.2 of the UDP. Miss Sureda states:

AThe form adopted is monotonous and repetitious, articulated primarily by colour rather than architectural interest. While the massing of warehouses in the locality is echoed, the development is without the richness of the heritage warehouses and loses the attributes of the traditional warehouse form in this precinct.@

Moreover, Miss Sureda states:

AThe subject proposal does not have the purpose for adapting an existing warehouse form to a residential use; it is a clean, cleared site.@

For the applicant, Mr Zylber expresses the view that the proposed building is consistent with the facade treatment controls of the UDP. The facades are slightly modulated through recessed wall segments and the use of different masonry types and colours. Mr Spira states:

ABuilding elevations are articulated through design modules which utilise changes in fenestration and colour of materials. Combined with recessed wall planes above pedestrian porticos and driveways, the design provides architectural variety and avoids monotonous repetition of facade elements and creates a well balanced and harmonious architectural composition. The overall form and materials respond to the architectural context created by the adjacent former wool store buildings which are listed as heritage items in SREP 26.@

Professor Roberts states that the proposed building is Aa building of considerable architectural merit@ and that the measures adopted as a device to reduce the apparent length and scale of the facade are successful. The facade treatment of the proposal Amore than adequately fulfils the requirement that the development contributes to a lively environment and to harmonious streetscapes and built edges to the public domain@.

It seems to me, however, that the question which arises under this issue is whether the proposed building complies with the principles and controls in the UDP. I think it does not. It does not meet the principle objective of the UDP (cl 1.3), quoted above, in achieving a built environment of a high standard in the precinct, for the reasons given under Issues 1 and 5 above. It also seems to me, however, that the proposed building does not comply with the control described in cl 4.2 of the UDP, quoted above. The building might very well answer the description of it by Professor Roberts as a building of considerable architectural merit, containing the commendable facade treatment described by him and by Mr Spira, but that is not the issue. The requirements of cl 4.2 have not been met; in particular: ALong facades should be articulated by breaking the building into distinct segments and indented courtyards@. This has not been done here.

A further criticism made by the respondent=s expert witnesses is that the treatment of the proposed building at ground level and particularly the provision of colonnades is said to contravene cll 4.3 and 4.4 of the UDP. Although the subject site is not within an area in which colonnades must be provided, it seems to me that there is nothing inconsistent with cll 4.3 and 4.4 by the provision of colonnades outside the area in which they must be provided.

Issue 3: The proposed building is excessive in height, massing bulk and

scale

As I have noted, the proposed building complies with the numerical criteria governing its height. That is not conclusive, however, of its acceptability. Section 90(1)(e) of the Act requires the consent authority to take into consideration Athe character, location, siting, bulk, scale, shape, size, density, design or external appearance@ of the proposed building.

The proposed building is large by any standard. Its elevations to Jones Street, William Henry Street and Wattle Street are each approximately 90 metres long. The Wattle Street frontage is 28 metres in height. Along the sloping William Henry Street frontage the height ranges from 28 metres at the lower end of the slope to 14 metres at the higher end. On the Jones Street frontage the height is 21.6 metres and 14 metres. According to Mr Mitchell it is a large box-like development. According to Mr Harrison, Athe building mass overwhelms the street by its long length, high height and nominal setback. It would be more appropriate to break up the mass into at least three independent buildings ÿ A. There is, he states, no attempt to break down the mass or bulk of the building. There should be a number of identifiably different and smaller buildings, which could be of an overall design theme. Mr Harrison also states Asome of the porticoes would be better if replaced by gaps between buildings in order to visually conne

ct the courtyard to the street and to provide buildings with individual identity rather than the anonymous mass of building (more associated with the now discredited 1950=s and 1960=s large scale housing blocks)@. He states that the development on the site of the former Crown Street Women=s Hospital is a good example of what can be done.

Miss Morrish states:

AThe height and massing proposed in this development are a direct response to the warehouse form prevalent along Wattle Street. This form reflects the prior use of Ultimo area and is not an appropriate solution having regard to the residential nature of this development and the green fields site@.

Miss Morrish further states:

AThe justification of a >warehouse= form for a new residential building in this location is not valid. Where the development does not retain a historic warehouse which is to be adapted for re-use, it is inappropriate to replicate that form for a totally unrelated use. Doing this ignores the residential character of the development. In the case of re-use of an existing warehouse it is the heritage significance which has dictated the retention of the structure.@

This development is not a re-use of an existing wool store. Miss Morrish states that the building is too massive and should be broken down into a number of small buildings of different design.

Miss Sureda also notes that the proposed building Aappears to have borrowed the massing of warehouses in the area@, which is not the better form of residential development. Miss Sureda also states: AThe subject proposal does not have the purpose for adapting an existing warehouse form to a residential use; it is a clean, cleared site@.

Mr Zylber states that the built form is typical of the form of wool store buildings along the western boundary of Ultimo. He states: AThe wall height and massing relate to the form and scale of the adjacent heritage items, former wool stores.@ Mr Spira states: AThe overall envelope responds to the characteristic built form along the western slopes of Ultimo ridge with [a] 28 metre street wall along Wattle Street which progressively reduces in height towards Jones Street@.

Professor Roberts states that the proposed building maintains the symmetrical warehouse form. He can see no benefit in breaking it up into a number of different buildings, which would result in buildings with a vertical emphasis which would be both wrong in form and wrong in scale. Professor Roberts states that the height, massing, bulk and scale of the proposed development is entirely appropriate for the site and for the urban context in which it is located. He also states: AI believe the architects have designed a building of considerable architectural merit which is entirely appropriate in form and scale for the location@.

As I have mentioned, the building is large, being some 90 metres long at its street frontages and up to 25 metres in height. It is comparable in size to the large warehouse buildings in the vicinity. I am inclined to agree, however, with the respondent=s expert witnesses in the resolution of this issue. This is not a building which is to be used as a warehouse. A building designed specifically for residential use does not have to adopt the external form of a warehouse. As has been demonstrated by the preceding issues, a warehouse form of building creates other problems relating to residential amenity. I find the views of Mr Harrison and Miss Morrish, described above, persuasive. In particular, the example of the development of the former Crown Street Women=s Hospital described by Mr Harrison is, I think, a far more suitable kind of development for a site such as this. That is to say, the development should be broken up into a number of smaller and identifiably different buildings, which would thereby lessen t

he apparent mass, bulk and scale of the present proposal. The subject building might well be one Aof considerable architectural merit@, as described by Professor Roberts, but the preponderant weight of expert opinion in this case, with which I agree, is that it is simply too big and too bulky.

Issue 4: The proposed building form fails to provide articulation and architectural modulation.

This issue has been considered under Issue 2 above.

Issue 6: The central courtyard fails to provide a sufficient quality of useable open space.

The central courtyard is shown as having dimensions of 45 metres by 40 metres. The maximum height of its perimeter walls is 25 metres. As a consequence of the sloping site the courtyard is shown as having 3 separate levels, the middle level doubling as the roof of the swimming pool.

The courtyard comfortably complies with the numerical controls which govern its dimensions. The respondents expert witnesses criticise it, however, because it is said to be lacking in environmental quality. Mr Mitchell states that at least 48 per cent of it will be overshadowed from 9 am to 3 pm in mid winter. Mr Harrison criticises the useability of the courtyard and the effectiveness of its landscaping. Miss Morrish states that the amenity of the courtyard is significantly compromised in terms of privacy, solar access, noise and useability. Miss Morrish states further that the lowest of the three levels will be heavily overshadowed in winter and for substantial parts of the day in summer and autumn, reducing its utility. She is also critical of the landscaping plan. Miss Sureda is likewise critical of the courtyard Adissected in three levels and seven distinct areas@. She also states:

AThe courtyard is also affected by planter beds with protrusions from lower levels, interrupted stairways and unfettered overlooking by all internal facing apartments. The extent of terracing and level of protrusion restricts the amenity and viability. The useability of this space is limited and it does not invite residents to recreate in a relaxed setting. It is anticipated that noise levels would be exacerbated by the hard surfaces and the configuration of space.@

The expert witnesses for the applicant, such as Mr Zylber, appear to rely upon the large size of the courtyard and its square configuration to ensure satisfactory levels of sunlight access, air circulation and Aprivacy separation@. Professor Roberts states that the roof of the pool has been skilfully integrated into the design of the internal courtyard. He also states: ATogether, the design and dimensions of the internal courtyard and the reduced height of the northern wing of the building, will ensure adequate penetration of direct sunlight into the courtyard@. A landscape plan prepared by Guy Sturt and Associates, landscape architects, tendered by the applicant, was nevertheless the subject of criticism by the respondent=s witnesses, in particular by Miss Morrish.

I am inclined to the view that some of the criticisms of the utility of the courtyard are valid. Miss Morrish=s criticisms, in particular, appear to me to be soundly based. Since the current development application must be refused, there will be an opportunity in any redesign to meet many of the criticisms of the present proposal. At the risk of repetition I again refer to the apparently successful manner in which the landscaping of the central courtyard at the former Crown Street Women=s Hospital site has been carried out.

Conclusion

It is clear that this application must be refused for the various reasons which I have indicated. I note in passing, however, that in 1997 the respondent made a submission to the Minister for Urban Affairs and Planning requesting a review of SREP 26 due to a number of concerns, including:

(a) the fact that new developments, particularly residential developments, fail to produce an environment of high quality, human scale and sympathetic proportions;

(b) new development is excessive in height, bulk and intensity; and

(c) new developments lack visual interest and design quality.

A draft amending regional environmental plan is, I was informed, soon to be placed on public exhibition. This application exhibits the same kind of shortcomings which have prompted the review of the regional environmental plan. It, nevertheless, also fails to meet the relevant objectives and planning principles of the present regional environmental plan and its associated UDP for the Ultimo Precinct.

Orders

I make the following orders:

(1) Appeal dismissed.

(2) The exhibits may be returned.