Meriton v Sydney City Council - [2004] NSWLEC 313

Land and Environment Court

of New South Wales

CITATION: Meriton v Sydney City Council [2004] NSWLEC 313

PARTIES:
Applicant:
Meriton Properties Management Pty Ltd and Karimbla Properties (No 3) Pty Ltd
Respondent:
Council of the City of Sydney

FILE NUMBER(S): 10193 of 2004

CORAM: Roseth SC

KEY ISSUES: Development Application :- Staged development
Impact on heritage
Planning principle: protection of visual privacy

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING: 08/06/2004-10/06/2004

DATE OF JUDGMENT: 07/02/2004

LEGAL REPRESENTATIVES:
Mr B Preston QC
instructed by Ms J Hughes of Phillip Fox
Mr M Craig QC
instructed by Ms I Feguson of Maddocks Lawyers

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10193 of 2004

Roseth SC

2 July 2004

Meriton Property Management Pty Ltd
and Karimbla Properties (No 3) Pty Ltd

Applicant

Sydney City Council

Respondent

Introduction

1 This is an appeal against the refusal by Sydney City Council (the council) of a Stage 1 development application to demolish the existing buildings and receive approval for a building design envelope, a maximum Floor Space Ratio (FSR) and commercial, retail and residential and associated parking use of lot 1 DP 767757, lot 1 DP 767752 and lot 1 DP 77787, known as 420-426 Pitt Street and 36-38 Campbell Street, Sydney.

The site

2 The site is L-shaped, wrapping itself around the Chamberlain Hotel, which is at the corner of Pitt and Campbell Streets and is part of an item of heritage that includes four shops on the Pitt Street section of the site. It is common ground that, apart from these shops, the other existing buildings of the site are of no interest and may be demolished. The area of the site is 1,147m2.

3 To the south of the site is the abovementioned Chamberlain Hotel. To the north is a 30-storey apartment building, called Pitt Tower. One wall of this building is built on the boundary; others are reasonably close, including one corner 200mm away. The Pitt Tower has windows facing south over the site. The titles to the apartments that contain these windows include a positive covenant relating to these windows. The wording of the covenant lends itself to different interpretations.

4 To the west of the site is the Campbell Tower, which is a 36-storeys high apartment building about 26m from the site. A third residential tower, the Castlereagh Tower also exists and adds to the high-density character of the street block between Pitt, Castlereagh, Campbell and Goulburn Streets.

5 In addition to these tall residential towers, there are several lower buildings around the site, some of them heritage items. The section of Pitt Street between Goulburn and Campbell Streets includes some of these. Nevertheless, Pitt Street does not appear on the map of heritage streetscapes in the CSLEP 96.

The proposal and its history

6 The applicant proposes to demolish the existing buildings on the site, with the exception of the façade of the four heritage-listed shops. It proposes a building design envelope, within which a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWLEC 313
Decision Date: 07/02/2004

CaseChat Overview and Summary

Meriton Properties Management Pty Ltd and Karimbla Properties (No 3) Pty Ltd (the applicants) appealed to the Land and Environment Court against the refusal of the Council of the City of Sydney (the council) to approve their Stage 1 development application for the redevelopment of a site located at 420-426 Pitt Street and 36-38 Campbell Street, Sydney. The site is L-shaped and wraps around the Chamberlain Hotel, which is at the corner of Pitt and Campbell Streets and is part of an item of heritage. The applicants proposed to demolish the existing buildings on the site, with the exception of the façade of the four heritage-listed shops, and to develop the site with a building design envelope, a maximum Floor Space Ratio (FSR) of 13:1, and commercial, retail, and residential uses, with associated parking. The council refused the application on the basis of, among other things, the impact on the heritage items and the impact on the amenity of the neighbouring buildings. The applicants appealed to the Court, arguing that the Stage 1 application should have been approved on the basis that the detailed design of the development would be the result of a design competition to be undertaken in Stage 2. The council opposed the appeal. The Court found that the Stage 1 application should have been approved. The Court found that the proposal would not adversely affect the heritage significance of the heritage items and that the impact on the amenity of the neighbouring buildings was acceptable. The Court found that the design of Stage 2 must be the result of a competition between several designers to satisfy the planning instrument’s requirements for design excellence. The Court found that the setback from Pitt Street should be 10m, and that the height of the building should be reduced by one floor, or 3m, to avoid overlooking the penthouse apartments in Pitt Tower. The Court found that no windows should be closer than 6m to the south boundary in that section of the south wall that adjoins the Chamberlain Hotel, up to level 14. The Court found that the west section of the north wall should not contain any windows. The Court found that the internal amenity of the apartments should be addressed in Stage 2. The Court found that the FSR of the amended envelope was 12.5:1. The Court allowed the appeal and granted the Stage 1 development application, subject to the conditions set out in the judgment.

Orders