Multistar Pty Ltd v Sydney City Council
[1999] NSWLEC 205
•09/01/1999
Land and Environment Court
of New South Wales
CITATION:
Multistar Pty Ltd v Sydney City Council [1999] NSWLEC 205
PARTIES
APPLICANT:
Multistar Pty LtdRESPONDENT:
Sydney City Council
NUMBER:
10227 of 1999
CORAM:
Talbot J with Watts C
KEY ISSUES:
Development Consent; Evidence :-
Development consent:- multi storey building - balancing subjective evidence - construction of LEP
Evidence:- subjective opinion of expert
LEGISLATION CITED:
DATES OF HEARING:
08/12/1999; 08/13/1999; 08/16/1999; 08/17/1999; 08/18/1999; 08/19/1999; 08/20/1999; 08/23/1999; 08/24/1999
DATE OF JUDGMENT DELIVERY:
09/01/1999
LEGAL REPRESENTATIVES:
APPLICANT:
Mr N Hemmings QC (Solicitor)SOLICITORS:
Allen Allen & HemsleyRESPONDENT:
SOLICITORS:
Mr M Tobias QC
WITH:
Mr A Galasso (Barrister)
Dunhill Madden Butler
JUDGMENT:
Contents The land Relevant planning controls The proposal Background to the proposal The council’s decision The issues The witnesses Urban design and architectural merit - bulk, size and mass The architectural roof feature Overdevelopment Wind Amenity Open spaces Heritage Car parking Conclusion Conditions Orders Conditions of Consent
IN THE LAND AND Matter No. 10227 of 1999
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES With: Watts C
Decision Date: 1 September 1999
Applicant
Respondent
1. This is an appeal against the deemed refusal by the Council of the City of Sydney (the council) of a development application for the demolition of the existing buildings, with the exception of the Moreton’s Hotel, and the erection of a mixed-use development comprising three residential towers over a podium and basement levels incorporating residential, retail and commercial uses and tenant and public car parking on land bounded by Kent, Erskine, Napoleon and Sussex Streets, Sydney (the KENS site).
The land
2. The subject land does not include the land to the south of Sussex Lane, but includes the proposed extension to that lane and the land occupied by the existing car parking structures at the south-eastern corner of the block which are proposed to be demolished. Sussex Lane is a U-shaped street which passes through the land and has two intersections with Sussex Street.
3. The land comprises a number of different properties described as follows:
_ Lots 4, 5 and 8 in DP 786583
_ Lot 1 in DP 547534
_ Lot 1 in DP 189745
_ Lot 1 in DP 752063
_ Lots 40, 46, 49 and 50 in DP 812647
_ Lot 3 in DP 774564
_ Lot 1 in DP 595819
_ Lot 1 in DP 955612
_ Lot 1 in DP 449848
_ Lots 142, 143, 144, 146, 147, 148, 149 and 151 in DP 864285
4. It is generally rectangular in shape, except the northern section, that incorporates the Moreton’s Hotel and extends to the north-west. The hotel is separated from the main part of the land by the Western Distributor. The road is elevated some 20 to 40 metres above the land. Below the Western Distributor is a partially constructed road deck which is presently used as part of a privately owned car parking facility.
5. The land has an area of 9,092 m 2 . It falls from the Kent Street frontage to Sussex Street by around 10 metres.
6. Existing development on the subject land includes a public parking station between Kent Street and Sussex Lanes; two open car parking areas fronting Kent, Napoleon and Sussex Streets; the Waterside Workers Union building at 60-66 Sussex Street; Sussex Street Automotive Services; Lewry Auto Electrics and Caltex Downtown Service Station fronting Sussex Street and the Moreton’s Hotel. The existing development has a height of between one and nine levels. Generally, the lower scale development is along the Sussex Street frontage.
7. The Moreton’s Hotel, situated in the north-western corner of the land, is listed as a heritage item under Central Sydney Local Environmental Plan 1992 - Conservation of Heritage Items (LEP 92). The hotel is also the subject of a Permanent Conservation Order under the Heritage Act 1977. No issue arises in respect of the hotel.
8. Existing developments in the surrounding area generally comprise high rise commercial development to the east, the Darling Harbour wharves to the west, low-rise commercial terraces to the south fronting the northern side of Erskine Street with higher rise commercial development further to the south and commercial development to the north ranging from the serviced apartments situated beneath the Western Distributor to the high rise commercial towers fronting Kent Street.
9. The existing terrace buildings fronting Erskine Street are listed as heritage items under LEP 92. Erskine Street is listed as a heritage streetscape in Schedule 3 to LEP 92.
Relevant planning controls
10. The relevant planning controls include:
_ Central Sydney Local Environmental Plan 1996 (LEP 96) gazetted 27 December 96
_ LEP 96 Amendment No 4 gazetted 7 May 1999
_ LEP 96 Amendment No 6 gazetted 11 December 1998
_ LEP 92 - Conservation of Heritage Items gazetted 3 April 1992_ LEP 96 Amendment No 9 - Public Car Parking gazetted 9 August 1999
11. Under the principal planning instrument, LEP 96, the land is zoned City Centre. The proposed development is permissible with the consent of the responsible authority.
12. LEP 96 Amendment No 4 has the effect of introducing provisions relating to the calculation of floor space for amalgamated sites, special provisions relating to various uses including amusement arcades, brothels, restricted premises and late opening pubs, as well as a number of new definitions. It also amends the car parking provisions of LEP 96 and a number of existing definitions.
13. Clause 12 (f), (h), (i), (j), (l), (m), (n) of the objectives of LEP 96 are as follows:-
(f) the protection and enhancement of the quality of the public areas of Central Sydney - the parks, places, streets and lanes,
(h) the protection of the intricate urban fabric of Central Sydney,
(i) the achievement of a high level of design quality in buildings and in the relationship of buildings with neighbouring development and the public domain,
(j) the development of Central Sydney with regard to the principles of ecologically sustainable development,
(l) the maximisation of use of public transport, walking and cycling for trips to, from and within Central Sydney,
(n) the conservation of heritage items and areas.(m) the provision of a high quality pedestrian environment, (and)
14. Clause 18(c), (d), (f), (i), (j) and (1) of the City Centre zone objectives of LEP 96 are as follows :-
(c) to facilitate the development of buildings and works that are of a scale and character consistent with achieving the other objectives of this zone,
(d) to provide for increased residential development with appropriate amenity and to ensure the maintenance of a range of housing choice,
(f) to ensure wind levels are consistent with pedestrian comfort and the amenity of the public domain,
(i) to facilitate the conservation of items and areas of heritage significance,
(l) to provide active frontages to streets.(j) to protect the fine grained urban fabric of Central Sydney, especially the existing network of streets and lanes, (and)
15. Clause 47 of LEP 96 as amended by Amendment No 9 states:-
(a) to acknowledge that public transport is the most important and efficient means of moving people to and within Central Sydney, and
(b) to encourage commuting by public transport to Central Sydney in order to reduce the number of motor vehicles travelling through and to Central Sydney, and to improve overall environmental quality and pedestrian amenity, and
(c) to improve the attractiveness and competitiveness of Central Sydney for retail and commercial activities by providing a reasonable level of tenant and short-stay public car parking whilst discouraging commuter car parking; and
(d) to encourage residential development in Central Sydney; and
(e) to minimise adverse urban design impacts, in particular by discouraging the provision of above ground parking; and
(g) to ensure that tenant car parks are not occupied by persons other than occupiers of the building or land on which the car park is situated.(f) to minimise adverse traffic impacts, in particular conflicts between pedestrian and vehicular traffic; and
16. Clause 48A of LEP 96 inserted by Amendment No 9 is:-
48A Public car parking provisions
(1) The carrying out of development for the purpose of providing public car parking is prohibited on all land within Central Sydney, except as provided in subclause (2), (3), (4) or (5).General prohibition against provision of public car parking
(2) Consent may be granted for public car parks on land where no public car park already exists, but only where the consent authority is satisfied:New public car parks
(b) as to the criteria set out in subclause (6).(a) that the public car parking directly services major retail, cultural, recreational or entertainment uses which, in the opinion of the consent authority, are not reasonably serviced by public transport (either existing or planned) or existing public car parking; and
(3) Consent may be granted to development for the purpose of converting existing tenant car parking that is in excess of the maximum number of parking spaces allowed by clause 48(1) into public car parking, but only if the consent authority is satisfied as to the criteria set out in subclause (6).Existing tenant car parks
(4) The prohibition against car parking contained in subclause (1) does not apply to land:Existing public car parks
(b) in respect of which a development consent for a public car park is current.(a) on which a public car park already lawfully exists; or
(5) Consent may be granted for the erection of, demolition of, or making of additions that (in the opinion of the consent authority) are substantial to, a building located on land on which a public car park already lawfully exists, but only if the consent authority is satisfied that any public car park within the development:
(a) satisfies the criteria set out in subclause (6); and
(c) does not exceed the floor space area of the existing public car park.(b) does not result in more public car parking spaces on the land than already lawfully exist; and
(6) The criteria referred to in subclauses (2), (3) and (5) are that the public car park:Criteria
(a) does not prejudice attaining the objectives of this Part; and
(b) does not encourage commuter car parking nor reduce the proportion of public transport users travelling to the city each day; and
(c) is used for short-stay public car parking only in accordance with the provisions of the Central Sydney Development Control Plan 1996; and
(d) is located underground; and
(e) is included in the floor space area of the building for the purposes of calculation of floor space ratio; and
(f) is consistent with, and does not compromise, high quality urban design of buildings on the land and adjacent to the land; and
(h) in the opinion of the consent authority, is not likely to cause or contribute to an unacceptable level of vehicle saturation of intersections in the vicinity, or an unacceptable reduction of environmental capacity of roads in the vicinity, of the public car park.(g) is not likely to cause or increase adverse pedestrian impacts or local or city-wide vehicular traffic impacts; and
17. There are a number of draft Local Environmental Plans that are applicable to the subject development as follows:
_ Draft Central Sydney Heritage Local Environmental Plan 1998 (exhibited between 4 May 1998 and 15 June 1998)_ LEP 96 Draft Amendment No 8 - Urban Form adopted 23 November 1998
18. The relevant objectives are contained in cl 28A of LEP 96 Draft Amendment No 8 which states:-
(a) to promote design excellence in terms of urban form, massing, bulk and architectural treatment;
(b) to provide an analysis of site constraints and opportunities that forms the basis for determining the most appropriate floor space ratio, height and form of development for the site within the limits set by the Plan;
(d) to provide for a high quality amenity to the streets of Sydney and to uses located to the side and rear of mid block sites.(c) to promote design concepts for the site that ensure separation between tower forms;
19. Clause 28B precludes the grant of development consent unless there is a currently adopted development plan.
20. Development control plans include:-
_ Central Sydney Development Control Plan 1996 (DCP 96) dated 27 December 1996
_ Central Sydney Development Control Plan 1996 (Amendment No 5) - Internal Residential Amenity, which came into force on 27 April 1999
_ Central Sydney Development Control Plan 1996 (Amendment No 9) - Short Stay Public Car Parking, adopted by Council on 24 June 1999._ Central Sydney Development Control Plan 1996 (Amendment No 7) - KENS Site, which was adopted by Council on 15 June 1999, and
21. DCP 96 Amendment No 7 sets specific urban form, design and development controls for the KENS Site. It recognises the importance of the KENS site as a key development site on the western edge of Central Sydney with significant constraints such as the Western Distributor, nearby heritage items and linkage/view opportunities to the west of the site.
22. The objectives of DCP 96 Amendment No 7 cl 2.12E are to:
(i) Facilitate the redevelopment of the site to achieve a high quality urban form;
(ii) restrict residential uses towards the south of the site and at higher level to the north of the site;
(iii) Limit any high rise portion of a redevelopment to two high rise towers of suitable massing with distinct podium buildings and direct access to adjoining streets;
(iv) Provide a publicly accessible area, to the centre of the site.
(v) Ensure that uses abutting the publicly accessible area are active uses that develop a positive interface with the publicly accessible area.
(vi) Respect the existing context by providing lower scale, fine grain buildings and elevations which relate to the existing heritage context;
(vii) Extend the existing east west alignment of Sussex Lane up to Kent Street for pedestrian use;
(viii) Recognise the existing alignment of Sussex Lane in a north south direction within the new building form;
(x) propose no development either under or over the Western Distributor, stub and option land as this is an inappropriate location. This will facilitate:(ix) Provide and maintain pedestrian access and view corridors from the city to Wharves 8, 9 and 10 and the waterfront as well as views from the west into the site;
(i) appropriate standards of amenity; and
(ii) the possible reconfiguration of the expressway in the future, providing a separation between the new development and the expressway to also enable any future works required to the expressway.
The proposal
23. Development application No D99/00078 was lodged with the respondent council on 8 February 1999.
24. With the exception of the Moreton’s Hotel, it is proposed to demolish the existing buildings on the land. The proposal is a mixed development comprising three residential towers over a podium and basement levels incorporating residential, retail and commercial uses and tenant and public car parking. The proposed development as amended is described in Drawing Nos. DA/00, DA01.1/E, DA01.2/E, DA02/E, DA03/E, DA04/E, DA05/E, DA06/E, DA07/E, DA08/E, DA09/E, DA10/E, DA11/C, DA12/C, DA13/A, DA14/A, DA15/A, DA16/A, DA17/C, DA18/C, DA19/A, DA20/E, DA21/E, DA22/E, DA23/C, DA24/C, DA25/C, DA26/C, DA27/A prepared by Brewster Murray Pty Ltd originally dated February 1999.
25. The proposal comprises 439 residential units including 67 three bedroom units, 207 two bedroom units and 165 one bedroom units, 11,510 m 2 of retail and commercial floor space, a public parking station for 650 cars and 414 resident and 17 commercial/retail parking spaces. It is also proposed to close the northern end of Sussex Lane and to extend the lane through to Kent Street. Sussex Lane is to be for pedestrian use only.
26. The four basement levels (Levels B4-B1) of the proposed development extend under the Western Distributor and abut the stairs adjoining the southern wall of the Moreton’s Hotel. These levels contain 650 parking spaces that are part of the proposed parking station. The vehicular access to the parking station spaces is provided on Levels 1, LG1, LG2 and LG3.
27. Level LG3 (at approximately RL 3.10) is the street level entry from Sussex Street. Entry from Kent Street is at Level 1 (at approximately RL 13.6).
28. Vehicular entries and exits to the proposed parking station are provided from Sussex Street 20 metres to the south of the stairs adjacent to the Moreton’s Hotel at Level LG3 and from Kent Street at Level 1.
29. Residential parking is proposed at Levels B1, LG3, LG2 and LG1. A total of 414 residential parking spaces are proposed.
30. The proposed podium element has a height of 30 metres above Sussex Street and 20 metres above Kent Street and rises to RL 33.45 east of the Western Distributor. Retail spaces are proposed generally at street and first floor levels along the Sussex Street (Levels LG3 - LG1), Sussex Lane (Levels LG2 - 2) and Kent Street (Levels 1 - 2) frontages. In addition, a five level commercial building is proposed on the Sussex Street frontage between the Moreton’s Hotel and the Western Distributor.
31. The main residential entry foyer is at Level 1 accessible from Kent Street. This level contains three lift lobbies for the proposed towers above. It also contains two lift lobbies serving the parking station at the lower levels, one on the corner of Kent and Napoleon Streets and the second to the south of the residential entry. Level 1 also contains the lower level of seven loft apartments facing Sussex Street and Sussex Lane.
32. At Levels 3 - 6, 83 residential units are proposed around the outer edge of the podium element facing Sussex, Erskine, Kent and Napoleon Streets. At Level 3 there are nine function rooms. In addition, at Level 5, there are 441 storage spaces and three squash courts, while at Level 6 there are a range of facilities including swimming pool, games room, gymnasium, children's play area and function rooms.
33. Three towers (A, B and C) are proposed over the podium (RL 33.45 approximately) from Levels 7 - 25. Tower A is situated over the northern part of the site. It is set back a minimum of seven metres from the Western Distributor, three metres from Napoleon Street and six metres from Kent Street. It has a length along its north-south axis of around 37 metres and a width of around 24 metres.
34. Tower B is situated in the central part of the site. It is separated from Tower A by a minimum distance of 15.7 metres. It is set back a minimum of six metres from Kent Street and the Western Distributor and 9.96 metres from Sussex Street. It has a length along its east-west axis of around 50 metres and a width of around 23 metres.
35. Tower C is situated over the southern part of the site. It is separated from Tower B by a minimum distance of 15.7 metres. It is set back a minimum of 6.2 metres from Kent Street, 7.5 metres from Sussex Lane and 8.3 metres from Sussex Street. It has a length along its east-west axis of around 50 metres and a width of 23 metres.
36. At Level 7 each of the towers is separated by the curved glazed atrium. The residential units at this level each have access to a private courtyard/terrace area. The remainder of the podium level is proposed to be landscaped.
37. Each of the residential units at the upper levels of the towers is provided with a balcony. In addition, roof terraces are proposed to the uppermost units in each tower at Level 25 and roof.
38. A metal-framed architectural roof feature is proposed over each tower. These structures each have a maximum height of around 13 metres above the roof. Tower A reaches a maximum height of RL 103.7 and Towers B and C, RL 101.1.
39. The proposal now yields a floor space ratio (FSR) of 11.97:1 and the allowable maximum FSR is 13.14:1.
40. The total floor space area of the proposal under LEP 96 is 109,087 m 2 and the allowable maximum total floor space area under LEP 96 is 119,468 m 2 on a site area of 9,092 m 2 .
Background to the proposal
41. The holding company of the applicant purchased the site following a tender process initiated by the respondent council.
42. A number of development options were formulated for discussion with council’s officers. Between August and September 1998, the applicant’s representatives held several meetings with council officers when the details of a three tower scheme were discussed.
43. On 15 September 1998, the council’s Senior Urban Design Architect, Gabrielle Morrish, reported to Krystyna Luczak, the Executive Manager - City Development Division as follows:-
The applicant has indicated three medium towers with separations between them. The principle of the scheme is acceptable in terms of the three towers subject to appropriate massing and separation distances. Also supported is the retained lower scale of the heritage precinct, its separation by the lane and its reuse for retail based activity connecting through to courtyard areas to the rear that enliven the lane.
44. On 13 November 1998 the Lord Mayor wrote to architect Harry Seidler requesting a tabulation or “matrix” setting out one tower and two tower options, tower heights, tower floor plates, FSR, unit mix and anticipated construction costs in respect of the KENS site. The Lord Mayor agreed to pay Mr Seidler a professional fee in respect of the concepts and the matrix.
45. In a letter dated the previous day, namely 12 November 1998, Michael Collins of Michael Collins and Associates Pty Ltd was requested to review the matrix prepared by Harry Seidler and Associates and provide council with advice as to the potential yield of the prescribed options.
46. The relative dates of the two letters suggests that Harry Seidler had already developed a matrix for the site.
47. Mr Seidler reported that, in his opinion, to plan three buildings complying with the existing rules of an 80 metre height limit causes inevitable “congestion” on the site. He suggested a better solution would be two towers of varying height. His concept incorporated one tower 94 metres high at the northern end of the site and a second tower 112 metres high in the southern section. Each one of the Seidler development options exceeded the height limit in LEP 96 of 80 metres for the site.
48. Mr Collins, in his report, carried out a redevelopment feasibility analysis of eight Seidler development options. His analysis showed that a development comprising two towers each 140 metres high was not economically feasible. Other options analysed showed varying degrees of feasibility.
49. DCP 96 Amendment No 7 was approved on 17 June 1999. The DCP stated that, although tower forms are acceptable on the site the maximum number of towers is limited to two, each with a maximum height of 80 metres as demonstrated in figure 2 to the DCP.
50. The applicant submits that by imposing a two tower restriction with a height limit of 80 metres, the council has knowingly made development of the site in accordance with the DCP uneconomical.
51. Mr Ingham, the applicant’s planning consultant, said that in his opinion the preparation of the DCP was a direct result of the applicant preparing a development application for the site “that the Council did not like” . In his opinion this did not provide an appropriate environment in which to produce guidelines that objectively address the context of the site and the reasonable potential for impacts. The result, according to Mr Ingham is that the DCP contains provisions which are in direct conflict with the proposed development, a scheme which was developed in good faith in accordance with the planning provisions that existed at the time when the property was purchased from council.
52. Mr Hemmings raised the issue of the circumstances under which the DCP was made to support a submission that the DCP is a “colourable document” and that accordingly little or no weight should be attributed to it. Accordingly, Mr Hemmings contends that assessment of the proposal should be made in accordance with LEP 96 and DCP 96. Ultimately it is a question for the Court to give such weight to the DCP as it considers to be appropriate having regard to the whole of the circumstances of the site and its environs.
53. The LEP does not impose any control on the number of buildings for the site. The LEP imposes a development standard of 13.14:1 FSR, whereas DCP Amendment No 7 postulates that the likely achievable maximum FSR of the site is 8.2:1. The proposed development has a FSR of 11.97:1.
54. It is not appropriate for the Court to take into account the economic feasibility of achieving a development which complies with the relevant development control. However, if the Court can be satisfied that a DCP has not been made in good faith or for a reason extraneous to achieving a planning objective, it will not be given any weight.
55. The applicant may consider that it has been unfairly treated by the council, but ultimately the proposal must be assessed on its own merits.
56. The controls imposed by the DCP Amendment No 7 are significantly more restrictive on development allowed by the LEP.
57. It is appropriate to take a broad approach to the application of the DCP. There is no reason why the more detailed planning provisions contained in a DCP may not impose criteria by way of restriction or a specification of necessary requirements where justified in accordance with planning principle (see Cole JA in North Sydney Council v Ligon 302 Pty Ltd (1996) 93 LGERA 23).
58. Alan Cadogan, Specialist Urban Designer employed by the council, identified a twofold importance of the set of planning objectives and controls added to DCP 96 by the amendment made by inserting cl 2.12E on 17 June 1999. The first is that they are part of an approved DCP to which the development should comply. Secondly, they establish that there is an appropriate alternative form of development possible upon the site.
59. Although there is no direct evidence that the purpose of making DCP Amendment No 7 was to frustrate the applicant’s intentions for the site, it has not been explained why the council adopted a set of guidelines for the site which were not a reflection of the recommendations made by Harry Seidler and Associates. In the absence of such an explanation, it is difficult to determine the amount of weight to be placed on the DCP.
60. The guidelines provided by DCP Amendment No 7 are not so convincing that they should be given determinative weight.
The council’s decision
61. The council had not made a decision in respect of the development application prior to the filing of the appeal. The council formally refused the Development Application No D99/00078 on 15 July 1999.
The issues
62. An Amended Statement of Issues has been filed as follows:-
Issue 1 - Whether the proposed development is inconsistent with Clause 12(f), (h), (i), (j), (l), (m), (n) of the General Objectives and Clause 18(c), (d), (f), (i), (j), and (l) of the City Centre Zone Objectives and Central Sydney Development Control Plan 1996 in general, in that the proposed development would result in:
a) an inadequate separation between the towers;
b) poor residential amenity as a result of the proximity of residential Towers A and B adjacent to the Western Distributor;
c) excessive bulk created by the relationship of the proposed width to height of Towers B and C;
d) an adverse impact on the heritage significance of the Moreton’s Hotel and the Erskine Street group of terraces,
e) an adverse impact on the streetscape setting as a result of the scale and massing of the podium which fully infills the block;
f) an undesirable impact on the cityscape as a result of the unsatisfactory external design detail and selected materials and finishes;
g) a detrimental impact on views into the city and from the city as a result of the proposed bulk and placement of the towers and inadequate setbacks above street wall height from Kent, Sussex and Napoleon Streets, and new Sussex Lane, inadequate set backs above the street wall height from Kent, Sussex and Napoleon Streets and new Sussex Lane.
h) an undesirable impact on the level of activity at street level as a result of an inadequate provision for active uses;
i) a detrimental impact to the environmental quality of the city and the aim of encouraging the greater use of public transport as a result of the proposed operation of the public car park as a commuter car park;
j) an undesirable impact on the streetscape as a result of the location of the car park above ground level in Sussex Street;
k) an undesirable impact on the streetscape as a result of the introduction of four vehicular crossovers from Kent Street and Sussex Street to provide vehicular ingress/egress to the retail tenant and residential car spaces and public car park to the detriment of the Kent Street and Sussex Street streetscape;
l) an undesirable impact on the heritage significance and amenity of the Moreton’s Hotel which is a heritage item, as a result of the location of the Sussex Street vehicular crossovers adjacent to the Moreton’s Hotel;
m) an undesirable environmental effect as a result of adverse wind conditions arising from the development;
n) an undesirable effect as a result of the adverse impact of reflectivity created by the development.
Issue 2 - Whether the proposed development is inconsistent with draft Central Sydney Local Environmental Plan Amendment No. 8 - Urban Form.
Issue 3 - Whether the proposed development is inconsistent with Central Sydney Development Control Plan 1996 - Amendment No. 5 - Residential Amenity.
Issue 4 - Whether the proposed development is inconsistent with exhibited draft Central Sydney Development Control Plan Amendment No. 7 - KENS Site Development Control Plan.
Issue 5 - Whether the proposed development is inconsistent with Clause 7(9) of Central Sydney Local Environmental Plan 1992 - Conservation of Heritage Items.
Issue 6 - Whether the proposed development is inconsistent with Clause 17 of exhibited draft Central Sydney Heritage Local Environmental Plan 1998.
Issue 7 - Whether the inclusion of a public car park for 800 cars is inconsistent with Clause 12(1) General Objectives, and Clause 47(a), (b) and (d) of Central Sydney Local Environmental Plan 1996 which aim to minimise commuter traffic and encourage the greater use of public transport.
Issue 8 - Whether the inclusion of a public car park at the proposed location and hours of operation is inconsistent with exhibited draft Local Environmental Plan 1996 Amendment No. 9 - Public Car Parking.
Issue 10 - Whether the proposed development exceeds the height controls of LEP 1996.Issue 9 - Whether the building above RL 91.55 is an architectural roof feature and if, not, whether non-compliance with the height controls is acceptable in the circumstances.
63. After nine days of hearing, the following emerged as the salient issues:-
a) Urban design and architectural merit;
b) Bulk and separation of the three towers;
c) Architectural roof feature;
d) Wind;
e) Amenity;
f) Open spaces;
g) Overdevelopment;
h) Heritage;
i) Car parking.
64. The plans were amended prior to the hearing in some minor respects to meet council criticism and again during the hearing to take account of the controls imposed by LEP 96 Amendment No 9 made on 9 August 1999.
The witnesses
65. At the hearing the court heard evidence on behalf of the respondent council from:
- a) Mr A K Cadogan, specialist urban designer of the Council of the City of Sydney;
b) Mr H M Sanders, consultant town planner;
c) Ms K Luczak, Executive Manager - City Development Division of the Council of the City of Sydney, town planner;
d) Mr K Maher, architect;
e) Mr D J Kilsby, traffic engineer; and
f) Mr R P West, traffic engineer.
66. On behalf of the applicant evidence was given by:
a) Mr N Ingham, consultant town planner;
b) Mr A Auyeung, architect;
c) Professor G E Roberts, architect;
d) Professor J C Haskell, architect;
e) Ms W Thorp, heritage consultant;
f) Mr B J McDonald, heritage consultant;
g) Mr R Staas, heritage consultant;
h) Mr V Fattaretto, acoustic consultant;
i) Mr P Twiney, traffic consultant;
j) Mr C Fong, financial manager;
k) Dr P Georgiou, solar and wind consultant; and
l) Mr R Nettle, traffic engineer.
67. A site inspection was undertaken in company with the parties on the second day of the hearing.
Urban design and architectural merit - bulk, size and mass
68. A number of council witnesses raised the issue of the appearance of the towers as part of their criticism of the urban design strategy for the proposed buildings.
69. The council’s consultant architect, Mr Maher, expressed the view that it is not a high quality design. He was also highly critical of the opinion expressed by the applicant’s architectural experts, Professors Roberts and Haskell, supported by Mr McDonald and Mr Staas, and consultant town planner Mr Ingham, who generally held a strong contrary view that the urban design quality was a high standard. Mr Maher was supported on this aspect by council town planner Ms Luczak and in some respect by Mr Sanders who analysed the proposal from the point of view of a professional town planner.
70. The strategy adopted was explained by the architect, Mr Auyeung.
71. The stark contrast between the opinions of the expert witnesses is, to a large extent, merely demonstrative of the self evident subjective nature of an assessment of architectural design. In the words of Professor Haskell, architects have all shades of opinion.
72. The Court is expected to determine the issues on the basis of the evidence. Where there is a direct conflict of opinion on issues requiring an objective test, the Court is generally required to exercise its judicial function by reference to objective criteria. However, where a subjective opinion is the issue, the Court is driven to assess conflicting evidence on the basis that no particular conclusion is necessarily correct in fact.
73. If there is no attack on the credit of an expert witness who expresses a subjective opinion and the opinion expressed is otherwise credible, it should be accepted for what it is, namely that expert’s genuinely held view.
74. The Court accepts that each of the experts who has given evidence relative to the issue of architectural design genuinely believes the opinion expressed by them is correct. Nevertheless, each of them recognise that their view may not be held universally by all experts in the field, particularly other architects.
75. The architect, Mr Auyeung, told the Court he designed the proposal in accordance with his instructions to design a quality project that fits in with the constraints imposed by the relevant planning instruments and within its context in the city.
76. Balanced against the views expressed by the council’s expert witnesses who criticised the perceived squat appearance of the buildings and the massing of the three towers above the podium when observed obliquely, particularly from the south and south west is the equally strongly expressed support by Professors Haskell and Roberts in particular.
77. Professor Haskell told the Court that in his opinion the high urban design quality of the buildings flowed from the good basic design decision to place the glassy sleek elements comprised in the towers above the sturdier podium. He even went so far as to say that the podium addresses the street in a way that provides the prospect for one of the best stretches of urban street seen in the city for several years. According to him the detail and the modulation of building will achieve an appropriate human scale. He contrasts the proposal to the neglected and sad present state of a site which has been savagely injured by the construction of the Western Distributor slashing across the corner and the presence of the existing multi storey car park and service station.
78. In summary, Professor Haskell described the design as rising above the difficulties imposed by the presence of the Western Distributor and adjacent high rise development and separation from Darling Harbour by the surrounding dock area to produce a scheme which is both innovative and imaginative by providing a distinct urban design and architectural asset for this hitherto neglected part of central Sydney.
79. Professor Roberts also attributed a high level of urban design quality to the proposal which, in his opinion, will make an excellent contribution to the streetscape.
80. In his view the proposal overcomes the difficult problem of the intrusion of the Western Distributor along the Sussex Street elevation. Further, it successfully integrates the Moreton’s Hotel at one end and provides a horizontal base at the other end. He described the incorporation of the slope of the freeway with a gentle curve and concealment of the car parking as clever. Professor Roberts does not share the squat definition of the proposal.
81. With those ringing endorsements, it is reasonable for the Court to accept the applicant’s proposal on the basis that, from an urban design point of view, it can be regarded as satisfactory.
82. In the council’s case, Ms Luczak was of the opinion that there would be an inadequate separation of towers. She explained that:
(i) The minimum separation proposed between each of the towers is 15.7 metres. Clause 2.3 of DCP 96 requires that for buildings within the same site the minimum window to window separation up to a height of 45 metres is 12 metres and above 45 metres, 24 metres is desirable. The proposed development does not satisfy the tower separation standard above 45 metres.
(ii) Clause 2.12 of DCP 96 states that a two tower form is considered to be the appropriate form for the KENS site, as it allows a level of development which would achieve other objectives contained in the DCP that would contribute to the setting and significance of the site.
(iii) The general objectives relating to views contained in cl 2.8 require that development maintain and enhance views from Central Sydney to the harbour and surrounding parklands. Given this, the DCP then states that taking into account other provisions of the DCP, the siting and design of new buildings that open up significant views from the public domain will be encouraged.
(v) The development would be inconsistent with objective 12(i) “the achievement of a high level of design quality in buildings and in the relationship of buildings with neighbouring development and the public domain” .(iv) The two tower form would enable views through the site from Kent Street as well as facilitating view sharing and a better outlook for future occupants of the development. The three tower form is not able to achieve this objective as successfully due to the excessive bulk and massing of the development.
83. The applicant’s evidence in this regard, especially that of Professors Roberts and Haskell, and the applicant’s heritage experts, was that the building is an appropriate design in the context of bulk and the relationship of the proposed width to height of Towers B and C.
84. Professor Roberts considered the height to width relationship was appropriate.
85. All the towers are within the floor plate requirements of DCP 96 for the KENS site of 1,000 m 2 , with Towers B and C being only 890 m 2 .
86. Although the towers generally meet the DCP requirements they have a maximum horizontal dimension of greater than 40 metres. This is despite Sussex Lane being extended as part of the application.
87. The proposal comfortably meets the FSR requirements of LEP 96. The above ground bulk is reduced by the inclusion of the public car park in the total floor space area.
88. The council considers that the application should be refused for the lack of separation of the towers above 45 metres. The deficiency is small, being for the top 15 metres of the towers. The 24 metre separation is stated as “desirable” only.
89. In submissions Mr Hemmings points to the separation of seven metres between the adjacent Telstra building and the commercial building to its north as indicating that the proposed separation, being greater, is more than acceptable and will read clearly from a distance and will “contribute to the setting and significance of the site” .
90. The Court accepts that Tower C is well set back from Erskine Street by about 40 metres and has good separation from the buildings to the east and the west.
91. Adequate visual permeability is provided by spaces of 15.7 metres between the towers to maintain and enhance views from Central Sydney to the harbour and surrounding parklands.
92. Although the “ two tower” form would enable views through the site from Kent Street as well as facilitating view sharing and a better outlook for future occupants of the development, the Court is satisfied that the three tower form achieves this objective sufficiently well so as not to warrant refusal on this ground.
93. Ms Luczak was critical of the design of the podium. She stated that:
The length of the subject site is some 120 m from Napoleon Street to Sussex Lane. The podium occupies the whole of the site east of the Western Distributor. The podium form appears to be predetermined by the most cost-effective means of providing above ground parking lacking in modulation or articulation mitigating against the achievement of objective 12 (i) a high level of design quality in the relationship of buildings with the public domain . Amendment No. 7 to DCP 1996 not only requires a two tower scheme but also describes two discrete podia with provision for open space at ground level and below ground parking.
94. The podium complies with the design criteria set out in DCP 97 Amendment No 7 with a height of at least 20 metres and no more than 40 metres.
95. It forms a solid horizontal base to the building and dramatically improves the streetscapes in Kent, Sussex, Napoleon Streets and Sussex Lane.
96. With the breaking up of the eastern elevation of the podium to express the relationship of the podium to the towers above and the ends of the atria clearly visible in the facade, the design of the podium is generally satisfactory.
97. The Court accepts the view expressed by the applicant’s witnesses that a high level of design quality in building and in the relationship of buildings with neighbouring development and the public domain will be achieved.
98. The height of the podium is allowed under the relevant controls and extends to the alignment of the site in an appropriate manner. It enhances the streetscapes of Kent Street and Sussex Street and forms a new frontage to Sussex Lane. The southern elevation of the podium is effectively removed from Erskine Street so as not to visually impact on the historic terraces. On the northern end it relates well to the Western Distributor and Moreton’s Hotel. The towers are now within the prescribed height limits and, given the floor plate required for residential development, are sufficiently well separated.
The architectural roof feature
99. Mr Cadogan does not think that the architectural roof feature is an improvement to the design. Because of its width and height, in his opinion, it contributes to the overwhelming effect that the building has on Sussex Lane and on Erskine Street. It accentuates the width of the building, rather than its verticality. Furthermore, it fails to achieve a transition in height of buildings by providing a stepping down moving away from the city. He described the architectural feature above Tower A as a horizontal gridded structure that has no relationship whatsoever to the tower beneath it. In form it is reminiscent of a sky sign rather than an architectural roof feature. It is not remotely vertical. Each roof feature bears little relationship to the rest of the building and does not integrate with the design of the building.
100. Mr Sanders said that from his point of view, the impact of the bulk of the towers is exacerbated by the excessive height caused by what he considered to be the inappropriate roof structure by failing to achieve the objective of providing a stepping down of built form on the edges of the CBD and in particular down towards Darling Harbour. In his opinion, the design and configuration of the architectural roof features are such that they would not warrant exclusion from the height control.
101. Ms Luczak relies upon the requirements for an architectural roof feature contained in cl 32A of LEP 96 Amendment No 6:
Architectural roof features
(a) comprises a decorative element on the upper most portion of a building; andA person may, with development consent, carry out development in contravention of clause 30, 31 or 32 that results in an architectural roof feature, but only if the consent authority is satisfied that the architectural roof feature:
(b) does not include floor space area and is not reasonably capable of modification to include floor space area; and
(c) does not provide access for recreational purposes; and
(d) is not a structure for signage or advertising; and
(e) does not contain equipment or structures for servicing the building, such as plant, lift motor rooms, fire stairs and the like; and
(f) is an integral part of the design of the building in its context; and
(g) will have minimal overshadowing impact; and
(h) does not create a precedent that will have the potential to substantially weaken the height controls in this Plan, taking into account the purpose of the height controls; and
(i) provides a significant public benefit.
102. Ms Luczak’s opinion is that the impact of the massing at the top of the roof, which forms the greater part of the city block, undermines the purpose of the height controls with no identified public benefit and is therefore inconsistent with cl 32A(e), (f), (h) and (i).
103. Mr Maher considered that the architectural roof feature is an issue for him just from the point of view of the impact it has on the bulk and scale of the towers as opposed to a debate about the feature itself. He contrasted it to the architectural feature on the BT Tower, which he designed. The latter provides a ventilation support to the building and actually operates with the air conditioning and the environmental system. He also pointed out that the Renzo Piano roof structure provides an environmental benefit with respect to air movement over the surface of the glass between the two skins of glass. Although not strongly visible, he recognised an engagement with Tower A at the southern end in the extension of part of a vertical emphasis to the tower itself. In his view the architectural feature in Tower A does not integrate with the tower and reads more as a filigree screen sitting on top of the building.
104. When asked in cross examination whether he supported the roof features proposed Mr Ingham responded that, in his opinion, they could be lower and that they are slightly too big as presently proposed.
105. Ms Luczak adopted the advice of council’s urban designer that, in his view, the design of the top of the building is not integrated into the facade design of the buildings themselves. The tops read as extensive metal cladding to hide plant space rather than sculptural elements that enhance the building design and accordingly would be contrary to criteria (f) in cl 32A. This opinion appears to have been expressed at a time when a plant room was proposed at the top of the building.
106. Professor Roberts, on the other hand, believes the form of the towers is improved by the height and form of the structure on the top. Coming off the Harbour Bridge people will see it from the north and have a very strong impression of a vertical element surmounted by the top element which he thinks is just about right in its height.
107. Professor Haskell thinks that the architectural roof feature looks “very well” . He said, “(i)t’s a little bit between a hat and a cockade on the top, a cockade, you know like you have a sort of a hat sticking up.”
108. He went on to say that in his opinion it has a certain quality, as in a frill, and that the very slight inclination gives it the quality of style which is very appropriate. He nevertheless regarded the architectural feature as a decorative element forming an integral part of the design of the building being designed to complement and “top off” this particular design.
109. Once again the appreciation of this important design feature of the building is to a large extent subjective.
110. Clause 32A of LEP 96 provides a set of design criteria about which the consent authority needs to be satisfied. There can be no doubt that it comprises a decorative element which does not include floor space or access for recreational purposes. There is no suggestion it is a structure for signage or advertising. Any equipment for servicing the building has been removed from that location.
111. Opinions differ as to whether the feature is an integral part of the design of the building in its context. The Court accepts that it can be so regarded.
112. The issue of overshadowing has not been raised and the Court does not understand how a precedent in breach of the height controls is likely to follow.
113. The concept of public benefit in cl 32A(i) is to some extent nebulous in the context of a non-functional element of a building. Given that it does have the potential to provide a signature or identification to the building which might be regarded by some observers as attractive, there is a potential for an improvement to the aspect of this part of the western slope of the CBD when viewed from the areas of Darling Harbour and Cockle Bay.
Overdevelopment
114. Mr Tobias QC, on behalf of the council, stressed that there would be overdevelopment were the application to be approved. He relied on the evidence of Messrs Cadogan and Sanders and that of Ms Luczak. The thrust of the council’s case is that the bulk of the proposal is located to the east of the Western Distributor and as a result the building is “congested” in the way described by Mr Seidler in his studies for the land.
115. Any proposal constrained to comply with the 80 metre height limit of LEP 96 would be more “congested” at the podium level than a development of similar bulk that exceeds the 80 metre height limit, as proposed by Mr Seidler. However, the proposal complies with the FSR standard of LEP 96 and is of a height and bulk that is to be expected in this part of the City Centre zone.
116. Although there is some additional floor space relegated to the eastern side of the Western Distributor, the form of development on that side is not excessive. When the area of the Western Distributor is disregarded the site available for tower development is around two thirds of the total area of the land. However, not all the total floor area is concentrated in this eastern part of the land. For example, a five level commercial building, adjoining the Moreton’s Hotel, is on the western part of the land, and together with the public car park proposed under the Western Distributor contributes to the total floor area for the purposes of calculating FSR.
117. The overall FSR of 11.97 is less than that allowed at 13.14:1.
118. The proposal does not exploit the land on the eastern side of the Western Distributor to the extent that the council suggests, or exceed that which is permitted under the FSR control.
119. The proposal respects the historic Moreton’s Hotel, the Erskine Street Terraces and extends Sussex Lane in an easterly direction. It is a satisfactory urban design. It is of a similar bulk and scale to other buildings to the east.
120. The erection of the Wharves 9 and 10 development will allow the height of development on the western side of the city to step down towards the waters of Darling Harbour.
Wind
121. The council’s concerns with regard to wind impacts is exemplified by the evidence of Ms Luczak. She stated that:
The proposed development will produce significant changes to ground level winds on surrounding streets. There are 17 locations that would result in wind conditions deteriorating either from current conditions already in excess of 16 m/second, (the recommended criterion for acceptable conditions for comfort walking in city streets), or result in conditions currently below 16m/second deteriorating further beyond the standard. The proposal as submitted therefore does not comply with the standards nominated in the DCP and would require modification. Some locations would remain over the 16m/second standard with the recommended modifications. The proposed scheme is therefore inconsistent with the achievement of objectives 12(f), (m) and in particular 18(f) which aims to ensure wind levels are consistent with pedestrian comfort and the amenity of the public domain .
122. Notwithstanding that his modelling had been done on an earlier design, Mr Georgiou was satisfied that generally the maximum wind velocity standards will be met. He considered that the application could be conditioned satisfactorily to achieve the result sought by the council to achieve “pedestrian comfort and the amenity of the public domain” . If necessary, impacts can be maintained within relevant standards by the planting of trees in Kent Street, awnings in Kent Street near Erskine Street, pergolas or even appropriately designed artworks.
Amenity
123. Ms Luczak was critical of the design, since she maintained that there would be a “lack of sun protection of the units to the western sun, would require units to also be air conditioned during the heat of summer and would be contrary to objective 12 (j) development with regard to principles of ecological sustainable development” .
124. The applicant proposes to ameliorate the effect of noise generated by traffic using the Western Distributor, by double glazing and air conditioning all the units in the building. This is a requirement of the council’s noise control policy and will be required despite any set back from the distributor.
125. Towers B and C avoid the impact of western sun by presenting the narrowest facade in the direction of the setting summer sun. Tower A incorporates some shading to each floor on the western elevation. That will assist in this regard. The roller screens proposed for every window will provide additional benefits.
126. Some of the dwelling units will not receive sunlight. This is especially so for the south facing internal units of Tower C and some units in the podium.
127. The Court accepts that there is a reasonable balance between the requirement for sunlight, views and other matters under consideration.
128. A further issue raised by council in this respect is that the bulk of Tower C reduces the amount of daylight and sunlight reaching Sussex Lane. Direct daylight to Sussex Lane is obscured by the podium, the rear of the Erskine Street terraces and other tall buildings in the vicinity fronting Erskine Street, Kent Street, and Napoleon Street, and further afield. The drawings show that from the mid point of Sussex Lane the podium occludes Tower C almost in its entirety so that the width of the tower is irrelevant in this respect.
129. The reduction of the amount of direct daylight onto Sussex Lane by the additional width of Tower C is confined to the upper levels of the eastern and western ends of the southern facade of the tower. Any diminution of direct daylight as a result of the encroachment of these parts of the building will be more than offset by the new opening of the eastern end of Sussex Lane.
130. In the Court’s view the amount of daylight lost as a result of the additional width of facade near the top of Tower C will be negligible.
131. The podium will block out much of the northerly sun from Sussex Lane. Sunlight will penetrate in the mornings and fall on the northern facade of proposed new infill development on the southern side of Sussex Lane near its eastern end. The opening of Sussex Lane to Kent Street at the eastern end of the land provides the opportunity for sunlight to penetrate where none enters at present. In the afternoon some sun will fall on the existing building on the southern side of Sussex Lane near its western end.
132. The additional 10 metre width of Tower C will reduce the amount of sunlight reaching Sussex Lane to a minor extent.
Open spaces
133. Although Ms Luczak commented that DCP 96 Amendment No 7 “not only requires a 'two tower' scheme but also describes two discrete podia with provision for open space at ground level and below ground parking” , the applicant has sought to achieve a satisfactory environment in this noisy part of the city by enclosing the public areas within the podium.
134. The podium is provided with skylights over the atria to allow daylight to penetrate the public areas on Level 6.
135. Mr Georgiou was of the opinion that opening up the podium will be counterproductive and create windswept spaces of little utility.
136. The Court is satisfied that the enclosed areas of the podium will achieve the objectives of the council by providing public areas of satisfactory amenity.
Heritage
137. The thrust of the council’s case in this regard revolves around the concern that there would be an unreasonable overbearing visual impact of Tower C on the historic terraces in Erskine Street.
138. Ms Luczak saw the proximity of the “nearby heritage items and linkage/view opportunities to the west of the site” as a constraint on development.
139. She commented that “the height of the Tower C, and the lack of set back of Tower C from the podium, and the excessive width of Tower C are considered to overwhelm the existing low scale heritage context of the terraces” .
140. The allowable width of the elevation of a tower in the southern part of the site under DCP 96 Amendment No 7 - KENS Site is 40 metres. The tower width proposed is 50 metres. The applicant contends that the impact is reduced by the feathering and recession of the edges along the southern facade by the introduction of small scale elements such as balconies so that the perceived width should be regarded as being within the order of 35 metres.
141. At least the top 10 floors of Tower C are visible over the roof of the terraces from the southern side of Erskine Street. The concern of the council is directed at the articulated edges of the tower at the extremities of the upper levels of the building.
142. The upper part of the tower building is well outside the cone of vision of a passer-by walking along the southern footpath of Erskine Street. Mr Ingham was of the opinion that without “craning one’s neck” the passer-by will not see past the elevation of the terraces opposite. The side parts at the top of the tower will not register with the casual observer. When compared with a tower of allowable width, the extra 10 metres width is, in the Court’s view, negligible and of no consequence.
143. Furthermore, the southern facade of Tower C is set back around 40 metres from the northern facade of the Erskine Street buildings. This set back diminishes the impact of the tower from viewpoints in Erskine Street. The foreground comprising the southern facade of the historic terraces opposite the viewpoint will draw the eye down and not towards the top of the tower itself.
144. The visual impact of Tower C on the terraces does not warrant refusal of the application.
Car parking
145. The council has developed a policy of restricting the availability of car parking in the city in order to promote the use of public transport. The efficacy of this policy is not an issue in the proceedings as it is now enshrined in the enforceable provisions contained in cl 48A inserted in LEP 96 on 9 August 1999.
146. Criteria (c) in subcl (6) means that the consent authority must be satisfied that any car park is used for short-stay public car parking only in accordance with the provisions of DCP 96.
147. Clause 5.2.1 of the DCP provides that short-stay public parking is not to be accessible to vehicles between 5.30 am and 9.30 am Monday to Friday. A minimum fee structure to discourage long-stay parking is prescribed.
148. The Court has heard conflicting evidence about the real demand for short-stay public car parking in this part of Central Sydney. Mr West, the council’s Manager Transport and Access, and Mr Kilsby, a consultant transport planner, relied upon survey information to conclude that the number of spaces which may be justifiable on the site is in a range between 258 and 394 depending upon the demand created by charter vessel operations at Wharves 9 and 10 adjacent to the site and the continuing availability of a disused section of roadway comprising the lower deck of the Western Distributor.
149. These figures contrast with the existing capacity of the Kent Street Car Park which provides 837 car parking spaces. When taken together with a number of surface areas around the site, there is a capacity at present to accommodate slightly over 1,000 cars at any one time. The surface areas will disappear when the site is fully developed.
150. Ultimately, the council’s case is that no more than 364 car spaces should be provided on site to comply with the provisions of the LEP, whereas the applicant contends for a capacity of 650 spaces for short-term parking in accordance with the LEP. The council’s figure of 364 includes an allowance of 100 spaces to meet a demand from the charter boat facility. However council’s witnesses do not accept that the allowance for the charter boat facility is justified. If the lower deck of the Western Distributor ultimately becomes unavailable, the council’s experts recognise that these spaces should be replaced on the site with a further 36 spaces, expanding the maximum number of spaces to 400 at the outside.
151. Mr Kilsby was not enticed to materially change his assessment even after more detailed empirical data in relation to the use of the Kent Street Car Park was provided by the applicant.
152. Amendment No 9 made to DCP 96 now precludes the grant of consent to a public car park unless the public car park is for short-stay parking applying the restrictions referred to in cl 5.2.1 of the DCP. It is therefore necessary for the Court to be satisfied that the public car park in the proposal will only be used for short-stay parking.
153. The applicant’s argument is that the council’s calculation of the maximum number of short-term car parking spaces required is not a proper reflection of the actual demand for the spaces to be replaced. There is also a dispute as to whether the demand created by the charter boat operation can be properly regarded as public car parking directly servicing a recreational or entertainment use in accordance with cl 48A(2)(a). Some attempt has been made by the applicant to widen the demand to major retail, cultural, recreational and other uses within the locality.
154. Although the council recognises that there is no numerical constraint apart from the inverse pricing structure which determines the extent of short-stay car parking, it argues there could be four undesirable effects, namely:-
(i) a strong public perception that it is easy to park in this sector of the city which would be detrimental to the objectives of promoting the use of public transport and reducing the demand on parking by commuter drivers;
(ii) car park managers would have a strong incentive to market surplus spaces contrary to the above objectives;
(iv) precedent.(iii) the prospect of a lobby for the relaxation of the long stay restriction; and
155. Council’s concerns appear to ignore its own capacity to restrict the use of spaces for long-term stay through the provisions of the DCP pursuant to cl 42A(6)(c). The ultimate answer therefore is in its own hands.
156. Nevertheless the Court is obliged to ensure that the policy objectives are taken into account and that the development does not provide a number of car spaces which is overwhelmingly beyond the demand for short-stay use.
157. The council witnesses relied upon a study which involved the matching of number plates over a survey period during two days in August this year. The Court is not convinced that the material provided from the survey is a satisfactory base to determine the actual extent of short-term parking on the site. A number of the assumptions made to adjust the figures in the survey are more in the nature of guess work or speculation. That is not to be critical of the council witnesses who both appear to have done the best they could with the information available to them.
158. The applicant’s witnesses provided little further assistance.
159. The Court is satisfied that there is some short-term parking demand in this location. It is most probably in the order of 350 - 400.
160. It needs to be determined whether further demand will be generated out of the use of function rooms and sporting facilities on the site, the charter boat operations at Wharves 9 and 10 and other identified public attractions in the area which, in one case, extended as far as Circular Quay. The Court rejects any suggestion that the likely draw to a parking station in Kent Street will extend beyond the immediate environs of the site. Darling Harbour is well catered for. There are other public car parks in the area which provide at least some facility for Cockle Bay and the aquarium.
161. However, the evidence is that the charter boat facility has been approved with a provision for car parking which is less than the amount required to meet the demand its promoters expect to be generated. The 200 space demand for the charter boat facility appears to compare to the likely maximum parking permitted for that type of operation under the council’s parking code.
162. Although much of the transport to the charter facility will be by tourist bus, nevertheless the Court believes there will be a real demand for private car parking on a short-term basis, particularly at nights and weekends.
163. The Court is satisfied that there is a reasonable expectation of a demand for short-term parking at the Kent Street site in the order of 550 - 600. The applicant proposes to provide 650 public car spaces which is in the same order of magnitude.
164. Clause 48A(2) allows the provision of public car parking, otherwise prohibited, if it is for the purposes of major retail, cultural, recreational or entertainment uses and the criteria set out in subcl (6) is satisfied.
165. Mr Tobias developed an argument that the charter boat use was merely a commercial or tourist use and accordingly did not fit the recreational or entertainment use.
166. The common expectation accepted by both parties and their witnesses is that the charter boat facility would be used for sightseeing, lunch cruises, afternoon tea cruises, dinner cruises, parties and entertainment. Obviously the charter companies operate their business as a commercial enterprise. It is equally obvious that tourists will be the main customers. Even residents of Sydney who take the opportunity to enjoy a cruise on Sydney Harbour might be regarded as tourists. Nevertheless, notwithstanding that the operations are commercial and cater for tourists, they are clearly designed to entertain the patrons and to facilitate relaxation in the form of passive recreation. The number of patrons envisaged confirms that the use will be a major one. The Court is satisfied that the use of the facilities at Wharves 9 and 10 is a major recreational or entertainment use as contemplated by cl 48A(2)(a). The users of the wharf facility must also be regarded as short-stay parkers limited to the duration of the individual cruises, generally in the order of several hours. Accordingly the applicant is entitled to construct 200 car spaces on the site relying upon cl 48A(2) without the constraints imposed by subcl (5).
167. The evidence discloses that there will be 297 public car parking spaces provided within the footprint of the existing Kent Street Car Park. Accordingly there must be 153 public car spaces contemplated within the development which are not spaces to be used in accordance with cl 48A(2)(a) and are outside the footprint of the existing car park. This causes the Court to give consideration to the proper construction of cl 48A(5).
168. If the applicant is required by cl 48A(5)(b) to limit the number of car spaces to those already existing within the footprint, then a major redesign of the lower levels of the building will be necessary in order to accommodate a further 153 spaces within the footprint or to reduce the number of public car spaces outside the footprint.
169. The primary objective of cl 48A is to prohibit the carrying out of development for the purpose of providing public car parking.
170. Contrary to the council’s position, the applicant contends that it is not necessary that the car park be situated on exactly the same footprint as the existing car park. The land upon which the existing car park sits is to be regarded as being encompassed within the broader development site.
171. The argument draws a distinction between a new public car park built on a particular parcel of land on which a public car park already exists and a new public car park proposed within a new development on land which encompasses the existing car park area. It assumes that a car park within a new development may extend beyond the area actually occupied by a building in which a public car park already lawfully exists.
172. In this case the three tower development is to be erected on land which comprises other land besides the actual footprint of the existing Kent Street Car Park building. The applicant’s argument certainly has practical appeal and prima facie is not inconsistent with the objective of limiting the creation of new public car parking spaces to the number already existing.
173. Reference to “the development” in cl 48A(5) arguably means the forms of development identified earlier in the subclause, namely erection of, demolition of or making of additions to a building. In this case there will be demolition of the Kent Street Car Park building and erection of a building on land which encompasses the land on which the public car park already lawfully exists.
174. The principles of construction to be applied when interpreting an instrument such as a local environmental plan is that the Court should concern itself with practical planning considerations rather than by construing it strictly according to the language used. Where the words can lead to more than one conclusion, the Court should adopt a conclusion which is reasonable and meets the planning objectives and practical aims which the draftsperson seeks to achieve. A purposive approach is appropriate. The applicant’s construction of cl 48A(5) accommodates the achievement of the aims and objectives of the LEP.
175. By reducing the number of public car parking spaces from over 1,000 to 650 and by eliminating all long-term parking on the site, the council’s overall objective for the operation of cl 48A expressed in cl 47 will be achieved.
176. There can be no adverse planning consequence by allowing the creation of new public car parking spaces within the total development, provided the number does not exceed the existing number of spaces in the car park which is to be demolished and replaced. Otherwise, seeking to locate the new spaces wholly within the footprint of the existing car park would create an artificial situation where the actual location of the footprint of the old car park building has no possible relevance in the context of the overall site of this development.
177. In summary, the Court is satisfied that 200 public car parking spaces may be provided pursuant to cl 48A(2) to accommodate the short-stay requirements of the patrons of the charter boat facility. In addition, a further 450 public car spaces can be regarded as satisfying the criteria prescribed by cl 48A(5) and (6).
178. It is not necessary to take into account the additional demand to be created by the function rooms and recreational facilities within the development itself. However, this further demand merely reinforces the Court’s conclusion.
Conclusion
179. In comparison to the information made available to the council up to the time of its determination on 15 July 1999, the Court now has the advantage of further compendious written reports and has heard extensive oral testimony from a large number of critical witnesses whose evidence, in most instances, has been subjected to vigorous cross examination. The Court has the further advantage of being assisted and advised by Commissioner Watts pursuant to s 37 of the Land and Environment Court Act 1979.
180. The original plans have been amended to reflect concerns expressed by council officers in some respects and in response to DCP 96 Amendment No 9 made on 24 June 1999 and LEP 96 Amendment No 9 made on 9 August 1999.
181. After nine days of hearing, including a site inspection, the Court is satisfied that the applicant is entitled to a grant of development consent subject to conditions.
182. The proposed development may not be perfect in every detail but, in the Court’s view, it sufficiently respects the importance of the site within the aims and objectives of the constraints imposed by the relevant planning instruments in the circumstances of a difficult site significantly impacted by the elevated roadway comprising the Western Distributor.
Conditions
183. A set of draft conditions has been submitted by the council. In response to comments made during final submissions, the applicant has prepared an alternative form of Condition 21 if the Court is not minded to accept the council draft. Otherwise there is no issue in respect of the conditions.
184. Condition 21 proposed by the council requires further wind tunnel tests to be conducted and for ameliorative measures to be incorporated into the design of the proposed development and subject to the reasonable satisfaction of council.
185. The Court expressed some concerns regarding the potential for the ameliorative measures to have the effect of significantly altering the development ( Mison and Ors v Randwick Municipal Council and Ors (1991) 23 NSWLR 734). Discussion also took place regarding the prospect of granting a “deferred commencement” consent to cover the contingency.
186. However, s 80A(2) now contemplates that a consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is carried out to the satisfaction of the consent authority. Condition 21, in the form proposed by the council, satisfies s 80A(2). In the Court’s opinion it is not necessary to require a further development application to be made for the construction and erection of any necessary wind amelioration measures as the alternative condition 21 proposed by the applicant in response to the Court’s expressed concerns contemplates.
187. The conditions of consent can be generally in the form drafted by the council except for the gratuitous advice and notes which have been deleted as not appropriate to a consent granted by the Court. The draft form also refers to annexures which have not been provided. As far as practicable these references have been deleted together with incorrect levels apparently incorporated from earlier drawings. In the light of the applicant’s acceptance of the conditions, the requirement for a restrictive covenant in conditions 14(c) and 15(b) has not been deleted, notwithstanding the obvious conflict with the Court’s policy in that regard.
Orders
188. The formal orders of the Court are:-
1. Appeal upheld.
3. The exhibits, except Exhibit V, may be returned.2. Development Application D99/00078 for the demolition of existing buildings except Moreton’s Hotel and the erection of a mixed-use development comprising three residential towers over a podium and basement levels on land bounded by Kent, Erskine, Napolean and Sussex Streets Sydney is determined by granting consent to the application generally in accordance with Drawing Nos DA/00, DA01.1/E, DA01.2/E, DA02/E, DA03/E, DA04/E, DA05/E, DA06/E DA07/E, DA08/E, DA09/E, DA10/E, DA11/C, DA12/C, DA13/A, DA14/A, DA15/A, DA16/A, DA17/C, DA18/C, DA19/A, DA20/E, DA21/E, DA22/E, DA23/C, DA24/C, DA25/C, DA26/C, DA27/A prepared by Brewster Murray Pty Ltd dated February, July and April 1999 subject to conditions 1 to 142 inclusive attached and marked “A”.
in
Matter No. 10227 of 1999
Approved Development, Contributions and Covenants
APPROVED DEVELOPMENT
1. Development generally must be in accordance with Development Application No. D1997-00078 dated 8 February 1999 and Statement of Environmental Effects prepared by Ingham Planning dated February 1999 pursuant to drawings numbered DA/00, DA01.1/E, DA01.2/E, DA02/E, DA03/E, DA04/E, DA05/E, DA06/E DA07/E, DA08/E, DA09/E, DA10/E, DA11/C, DA12/C, DA13/A, DA14/A, DA15/A, DA16/A, DA17/C, DA18/C, DA19/A, DA20/E, DA21/E, DA22/E, DA23/C, DA24/C, DA25/C, DA26/C, DA27/A prepared by Brewster Murray Pty Ltd dated February, July and April 1999 as amended where necessary to comply with the following conditions:
FLOOR SPACE RATIO
2. The following applies to Floor Space Ratio:-
- (a) The Floor Space Ratio of the proposal must not exceed 11.97:1 calculated in accordance with the Central Sydney Local Environmental Plan 1996. For the purpose of the calculation of FSR, the Floor Space Area of the development is 109,087sqm.
(b) Prior to issue of an Occupation Certificate under the Environmental Planning and Assessment Act 1979, a Registered Surveyor shall provide certification of the total and component Floor Space Areas (by use) in the development. To the satisfaction of the Principal Certifying Authority (PCA) (Council or a private accredited certifier).
3.
- (a) The height of the building (as defined in the Dictionary in the Central Sydney Local Environmental Plan 1996) must not exceed RL 89.25m (AHD).
(b) Prior to issue of an Occupation Certificate under Environmental Planning and Assessment Act 1979, a Registered Surveyor shall provide certification of the height of the building, to the satisfaction of the Principal Certifying Authority (PCA) (Council or a private accredited certifier).
4. The development is subject to the existing easements and rights of way which exist in favour of the property known as 1A Napoleon Street being Lot 41 in Deposited Plan 812647. Prior to the commencement of construction the applicant will consult with the owner of 1A Napoleon Street to ensure that privacy issues are resolved to the satisfaction of the owner of 1A Napoleon Street. Prior to the commencement of construction the applicant will inform the Council of any such issues raised, and the manner in which they have been resolved.
(b) Any proposed connection to Council’s underground drainage system will require the owner to enter into a deed of Agreement with Council and obtain registration on Title of a Positive Covenant prior to the commencement of any work within the public way, at no cost to Council.
(c) The requirements of Sydney Water (currently the Urban Development Central East Group, Rockdale Regional Office) with regard to the on site detention of stormwater must be ascertained and complied with. Evidence of the approval of Sydney Water to the on-site detention must be submitted prior to issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979.
85. To ensure that public utility authorities are advised of the development:
- (a) A survey is to be carried out of all utility services within the site including relevant information from public utility authorities and excavation if necessary, to determine the position and level of services.
(b) The applicant is to negotiate with the public authorities (eg Energy Australia, Sydney Water, Telstra Australia, in connection with the relocation and/or adjustment of the services affected by the construction of the underground structure. Any costs in the relocation, adjustment or support of services are to be the responsibility of the developer.
(c) Documentary evidence is to be submitted to and approved by the Certifying Authority confirming that all of their requirements have been satisfied, prior to issue of a Construction Certificate under Environmental Planning and Assessment Act 1979.
86. The following shall be submitted to Council :-
- (a) A separate application including footpath alignment levels must be submitted for approval for the design of the building.
(b) Such application must be accompanied by a plan prepared by a Registered Surveyor showing the existing location, size and levels (AHD) of all service covers, trees, poles and street furniture, kerb, gutter and alignment levels at 10m cross/sections, alignment levels at proposed and existing vehicular and/or pedestrian entrances within the footway adjacent to and extending 20 metres past either side of the site.
(c) These levels as approved by Council are then to be incorporated into the plans submitted with the Application for a Construction Certificate.
- (a) The design of the building and the methods of storage and handling of waste and recyclable material must comply with Council’s Code for Waste Handling in Buildings (adopted 17 October 1994). The Code requires the submission of a Waste Management Plan, except for minor partition work (Annexure “A” of the Code).
(b) Certification of compliance with the design and constructional requirements of the Code including the associated Waste Management Plans and with the Conditions of Development Application consent relating to waste must be submitted to and approved by the Certifying Authority prior to issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979. Such Certification must be given by the Architect or other appropriately qualified person experienced in Waste Handling Design and Environmental Management.
(c) The Certified Plans and Specifications must address compliance with the Waste Code including details of the following, where applicable:-
- (i) The location, design and construction of the garbage room, recycling rooms, bin washing areas and collection areas.
(ii) The natural or mechanical ventilation, in accordance with the Building Code of Australia and Australian Standard 1668.
(iii) The location and design of any garbage chutes or compaction units required by Council’s Code.
(iv) The proximity of waste handling facilities to commercial food areas or loading docks, with a view to avoiding cross contamination.
- (a) The building design must incorporate separate garbage rooms constructed in accordance with Council’s Code, for the separation of commercial waste from residential waste, including recyclable materials.
(b) The building must not incorporate design features which will allow waste to be minimised and managed within each individual unit or office, on each floor of the building, and within the garbage/recycling storage and collection area.
(c) The building design must allow easy access to the garbage and recycling areas by residents and tenants, but prevent their use by non-residents/tenants.
90. The proposal is meet the requirements of a type A Construction.
91. Fire isolated stairs do not fully comply with Treads and Risers requirements of the BCA and are required to be redesigned to comply.
DESIGN OF FOOD PREMISES
92.
- (a) All parts of the premises to be used for or in connection with the delivery, storage, preparation or service of food or beverages must be designed, constructed and have facilities which comply with the National Code for the Construction and Fitout of Food Premises, the Food Act 1989, and the Food (General) Regulation 1997. The premises must be ventilated in accordance with the Building Code of Australia and Council’s Ventilation Code.
(b) Plans and specifications of the design together with Certification of Design, must be submitted to the satisfaction of either :
- (i) the Certifying Authority with the construction certificate application, ie.
(ii) *an Environmental Planning and Assessment Regulation 1994 Form 10 Compliance Certificate; or
(iii) *Certification signed by an Architect or other persons appropriately qualified and experienced in the design, codes and legislative provisions for food premises, when the Certifying Authority is the Council,
- OR
(v) *an Environmental Planning and Assessment Regulation 1994 Form 10 Compliance Certificate ; or
(vi) *Certification signed by an Architect or other persons appropriately qualified and experienced in the design, codes and legislative provisions for food premises, when the Principal Certifying Authority is the Council.
93. Sanitary and other facilities must be provided in accordance with the Building Code of Australia, Part F2.
SCHEDULE 1C CONDITIONS
CONDITIONS TO BE COMPLIED WITH PRIOR TO COMMENCEMENT OF CONSTRUCTION OR DEMOLITION WORK TO THE SATISFACTION OF THE PRINCIPAL CERTIFYING AUTHORITY
WASTE MANAGEMENT
94.
- (a) A Waste Management Plan for the construction period of the proposed development must be submitted to the satisfaction of the Principal Certifying Authority before commencement of work on the site .
(b) Certification that the plan is in accordance with the Development Approval Conditions, Council’s Code for Waste Handling in Buildings and the Waste Minimisation and Management Act 1995, must be submitted to the satisfaction of the Principal Certifying Authority. Such Certification must be submitted by the Architect or other appropriately qualified person experienced in Waste Handling Design and Environmental Management.
(c) The Waste Management Plan must address demolition, excavation and construction of the premises, as applicable. The plan must describe procedures by which waste will be minimised, managed and recycled and must address the following issues:
- (i) Compliance with the requirements set out in Annexure (“A”) of the Code for Waste Handling in Buildings adopted by Council 17 October 1994.
(ii) Details of recycling and the removal of spoil and rubbish from the site in the course of demolition, excavation and construction operations including:
- a. Type and quantities of material expected from demolition and excavation;
b. Name and address of transport company;
c. Address of proposed site of disposal;
d. Name/address of company/organisation accepting material;
e. Types and quantities of materials that are to be reused or recycled, on and off site and procedures involved;
f. Name of company/contractor undertaking on and off site reuse and recycling, and address of recycling outlet;
g. Material for disposal and justification of disposal.
The Principal Certifying Authority must be notified of any proposed change in any of the above details throughout the course of construction.
95. The details of any mechanical ventilation or air conditioning must be certified by a competent person to comply with Council’s Ventilation Code, the Building Code of Australia and relevant Australian Standards, to the satisfaction of the Principal Certifying Authority prior to commencement of any mechanical services work .
96. To enable certification, the mechanical ventilation documentation prescribed below shall be submitted to the Principal Certifying Authority:
- (a) Certified plans (in duplicate), coloured so as to adequately distinguish the proposed alterations;
(b) A general description of the project plus mechanical ventilation drawings and documentation in duplicate, coloured to show ductwork and equipment as set out below. (Where appropriate a schematic drawing should also be submitted).
- (i) Supply Air Ducts, Shafts and Fans - Blue
(ii) Return Air Ducts, Shafts and Fans - Pink
(iii) Outside Air Ducts, Shafts, Intakes and Stair Pressurisation - Green
(iv) Exhaust Air Ducts, Shafts, Fans, Discharges and Smoke Spill - Orange
(v) Mixing Boxes and Conditions - Yellow
(vi) Fire Dampers and Electric Heaters - Red
(d) A Mechanical Ventilation Design Certificate pursuant to Section 93 of the Local Government Act 1993, together with the Curriculum Vitae of the Design Engineer or other appropriate Certifier must be submitted to Principal Certifying Authority (PCA). A copy of the Certificate and a microfilm set of the certified drawings must be submitted to Council by the PCA;
(e) Documentary evidence in support of requests for departure from the prescribed or deemed provisions of the Building Code of Australia or any other requirements.
- (a) Structural Drawings prepared by an appropriately qualified practising Structural Engineer, corresponding with and attached to a Structural Certificate (see (b));
(b) Structural Certificate/s for Design , completed by the Project/Principal Engineer and by the Architect, OR a Compliance Certificate (Form 10 of the Environmental Planning and Assessment Regulation 1998), after the structural drawings have been checked and comply with:
- (i) The relevant clauses of the Building Code of Australia (BCA);
(ii) The relevant conditions of Development Consent;
(iii) The Architectural Plans incorporated with the Construction Certificate; and
(iv) The relevant Australian Standards listed in the BCA (Specifications A1.3);
(v) Any other relevant report/s or documents.
- (i) An appropriately qualified practising structural engineer certifying must have:-
- a. Appropriate tertiary qualifications in Civil or Structural Engineering; AND
b. Corporate membership of the Institution of Engineers Australia or equivalent; AND
c. Evidence of relevant experience in the form of a CV/Resume;
d. Appropriate current professional indemnity insurance.
(iii) An appropriately qualified person certifying must have a good working knowledge of the Building Code of Australia and Structural and Architectural drawing co-ordination.
(iv) Certification of Inspection/s is also required prior to issue of the Occupation Certificate, and/or prior to use. See Schedule 1E Conditions.
(v) Council reserves the right to randomly audit any structural documentation.
98. A separate application is to be made to Council for Approval under Section 68 of the Local Government Act 1993 to erect a hoarding or scaffolding in a public place and such application is to include:-
- (a) Architectural, construction and structural details of the design in accordance with the Policy for the Design and Construction of Hoarding (September 1997) and the Interim Policy for Temporary Protective Structures.
(b) Structural certification prepared and signed by an appropriately qualified practising structural Engineer.
(c) Evidence of the issue of a Structural Works Inspection Certificate and structural certification will be required prior to the commencement of demolition or construction works on site.
99. Prior to the commencement of any excavation of the building site and where shoring abuts the public way:-
- (a) A Road Opening Permit is to be obtained from Council.
(b) Detailed shoring plans, associated documentation and certification are to be submitted to and approved by Council. Such documentation is to include:-
- (i) Structural shoring plans in duplicate and a Certification form prepared and signed by an appropriately qualified practising Structural Engineer and repeated for each revision issued to Council.
(ii) The nomination of an appropriately qualified practising Structural Engineer who is to:-
- a. Certify that upon completion of installation, the shoring complies with the certified plans and,
b. Undertake a minimum of six-monthly inspections certifying continuing structural stability of the shoring by submitting a completed Section 2 of the Structural Certification form.
- a. A geotechnical report
b. The proving and certification of the foundation material.
(v) Evidence of Council’s acceptance of the shoring plans, documentation and certification is to be submitted to the Principal Certifying Authority prior to the commencement of any excavation of the building site.
100. A Pedestrian and Traffic Management Plan must be submitted to and approved by Council prior to commencement of demolition/excavation or construction on the site and must include details of:-
- (a) Proposed ingress and egress of vehicles to and from the construction site;
(b) Proposed protection of pedestrians adjacent to the site;
(c) Proposed pedestrian management whilst vehicles are entering and leaving the site;
(d) Proposed route of construction vehicles to and from the site.
ENVIRONMENTAL PROTECTION DURING CONSTRUCTION
102. The following environmental protection measures are required:
- (a) Prior to the commencement of work, a Water and Sediment Control Statement must be submitted and approved by the Principal Certifying Authority .
(b) Such statement must include:
- (i) The procedures by which stormwater and waste water deposited or generated on site is to be collected and treated prior to discharge including details of any proposed pollution control device;
(ii) The proposed method of discharge;
(iii) The procedures to be adopted for the prevention of run-off from the site onto the public way;
(iv) The procedures to be adopted for the prevention of loose material and litter from being blown onto the public way;
(v) The statement is to be consistent with the principles and practices set out in the Department of Land and Water Conservation’s “Erosion and Sediment Control Manual”.
(d) Any seepage or rainwater collected on site during construction must not be pumped to the street stormwater system unless separate prior approval is given in writing by Council. The applicant must comply with the Clean Waters Act, 1970, whereby it is an offence to pollute classified waters such as Sydney Harbour to which much of the City's street drainage is directly connected.
103. Prior to commencement of work for foundation, shoring or underpinning works, the following documentation must be submitted to the satisfaction of the Principal Certifying Authority (PCA) and a copy of same submitted to Council:
- (a) A geotechnical report which shall include the following information as appropriate:-
- (i) Borehole/test pit logs or inspection records;
(ii) Field/laboratory test results;
(iii) General geotechnical description of site;
(iv) Recommended safe bearing values and likely settlements of foundation material;
(v) Recommendations for stability and protection of excavations;
(vi) Opinion on the effect of the new works on existing buildings and recommendations for any underpinning or other measures required to maintain stability;
(vii) Method of proving and assessing foundations underpinning and/or excavation stability in accordance with design.
(c) The completed Geotechnical Certificate for the Report and ITP, completed by the Project/Principal Geotechnical Engineer OR, a compliance certificate (Form 10 of the Environmental Planning and Assessment Regulation 1998) after satisfying (a) and (b);
(d) A Dilapidation Report of adjoining building/s that may be affected by the proposed excavation/construction work;
- An appropriately qualified practising geotechnical engineer certifying must have:-
(i) Appropriate tertiary qualifications in Civil or Geotechnical Engineering, AND ;
(ii) Corporate membership of the Institution of Engineers Australia or equivalent; AND
(iii) Evidence of relevant experience in the form of a CV/Resume;
(iv) Appropriate current professional indemnity insurance.
(f) Certification of Inspection/s is also required prior to issue of the Occupation Certificate, and/or prior to use. See Schedule 1E Conditions.
BARRICADE PERMIT
104. Where construction/building works require the use of a public place including a road or footpath, approval under Section 68 of the Local Government Act 1993 for a Barricade Permit is to be obtained from Council prior to the commencement of work. Details of the barricade construction, area of enclosure and period of work are required to be submitted to the satisfaction of Council.
SCHEDULE 1D CONDITIONS
CONDITIONS TO BE COMPLIED WITH DURING CONSTRUCTION
HOURS OF WORK AND NOISE
105. The hours of construction and work on the development shall be as follows:
- (a) All work, including demolition, excavation and building work in connection with the proposed development must only be carried out between the hours of 7.00 am and 7.00 pm on Mondays to Fridays, inclusive, and 7.00 am and 5.00 pm on Saturdays, and no work must be carried out on Sundays or public holidays.
(b) All work, including demolition, excavation and building work must comply with "The City of Sydney Code of Practice for Construction Hours/Noise 1992" and Australian Standard 2436-1981 'Guide to Noise Control on Construction, Maintenance and Demolition Sites'.
106. A site notice(s) is to be prominently displayed at the boundary to each frontage of the site for the purposes of informing the public of appropriate project details and relevant approvals. The notice(s) is to satisfy all of the following requirements:-
- (a) Minimum dimensions of the notice are to measure 841mm x 594mm (A1) with any text on the notice to be a minimum of 30 point type size;
(b) The notice is to be durable and weatherproof and is to be displayed throughout the construction period;
(c) A copy of the first page of the development approval, building approval (including any modifications to those approvals) and any civic works approvals is to be posted alongside the notice in weatherproof casing;
(d) The approved hours of work, the name of the site manager, the responsible managing company, its address and 24 hour contact phone number for any inquiries, including construction/noise complaint are to be displayed on the site notice;
(e) The notice(s) is to be mounted at eye level on the perimeter hoardings and is to state that unauthorised entry to the site is not permitted.
107. This development consent does not extend to the use of appliances which emit noise of a highly intrusive nature (such as pile-drivers and hydraulic hammers) or are not listed in Groups B, C, D, E or F of Schedule 1 of the "City of Sydney Code of Practice for Construction Hours/Noise 1992" and Australian Standard 2436-1981 "Guide to Noise Control on Construction, Maintenance and Demolition Sites". A separate application for approval to use any of these appliances must be made to Council.
CONSTRUCTION DURING THE OLYMPICS
108. Should construction be required to take place during the period 1 September 2000 to 1 October 2000 it may only be carried out in accordance with a Traffic and Pedestrian Management Plan and a Construction Program submitted and approved by Council , after consultation with the relevant Olympic authorities, such submission to be made at least three months prior to 1 September 2000.
LOADING AND UNLOADING DURING CONSTRUCTION
109. The following requirements apply:-
- (a) All loading and unloading associated with construction must be accommodated on site.
(b) The structural design of the building shall be such as to permit the basement and/or the ground floor to be used as a loading and unloading area for the construction of the remainder of the development.
(c) If, during excavation, it is not feasible for loading and unloading to take place on site, the provision of a construction zone may be considered by Council.
(d) In addition to any approved construction zone, provision must be made for loading and unloading to be accommodated on site once the development has reached ground level.
(e) If a construction zone is warranted, such an application must be made to Council prior to commencement of work on the site. An approval for a construction zone may be given for a specific period and certain hours of the days to reflect the particular need of the site for such facility at various stages of construction. The approval will be reviewed periodically for any adjustment necessitated by the progress of the construction activities.
111. Prior to the commencement of excavation, the applicant should contact the “Dial Before You Dig” service on telephone (02) 1100, fax number 1300-652-077 to ascertain the presence and type of underground utility services in the vicinity of the development.
LIGHTING OF SITE OUTSIDE OF STANDARD CONSTRUCTION HOURS
112. The applicant shall ensure that lighting of the site, whilst any work is undertaken outside of Council’s standard hours of construction, is such that, at no time will the intensity, hours of illumination or location of the lighting cause injury to the amenity of the neighbourhood. If in the opinion of Council, injury is likely to be caused, the intensity, hours of illumination and location of the lighting must be varied so that it does not cause injury to nearby residents.
CONSTRUCTION PROGRESS CERTIFICATION
113. For the duration of the construction process a Construction Progress Certificate shall be provided to Council on a three monthly basis to the effect that the construction work, including architectural detail, is in accordance with the approved development application drawings and conditions of development consent and the approved Construction Certificate drawings and specifications.
CONTROL OF VERMIN
114. Measures for the eradication of vermin from the site during construction work shall be implemented prior to the commencement of any work to the satisfaction of the Principal Certifying Authority. All service ducts and cable entries to existing premises should be sealed prior to any demolition being carried out.
USE OF MOBILE CRANES
115. Permits required for use of mobile cranes:-
- (a) For special operations including the delivery of materials, hoisting of plant and equipment and erection and dismantling of on site tower cranes which warrant the on street use of mobile cranes, permits must be obtained from Council for the use of a mobile crane. The permits must be obtained 48 hours beforehand for partial road closures which, in the opinion of Council will create minimal traffic disruptions and 4 weeks beforehand in the case of full road closures and partial road closures which, in the opinion of Council, will create significant traffic disruptions.
(b) Mobile cranes operating from the road must not be used as a method of demolishing or constructing a building.
(c) Special operations and the use of mobile cranes must comply with the approved hours of construction. Mobile cranes shall not be delivered to the site prior to 7.30am without the prior approval of Council.
CLEAN WATERS ACT
117. To comply with the Clean Waters Act 1970 whereby it is an offence to pollute classified waters such as Sydney Harbour to which most of the City’s street drainage is directly connected:-
- (a) concrete trucks, concrete pumps and their attachments, and trucks used for the disposal of spoil shall not be washed out on the public way;
(b) any water collected from on-site washing down of concrete trucks, concrete pumps or their attachments and trucks used for the disposal of spoil shall not be pumped, directed or allowed to flow to the street stormwater system;
(c) any seepage or rain water collected on site during construction shall not be pumped to the street stormwater system unless separate prior approval is given in writing by Council and evidence of approval is to be submitted to the Principal Certifying Authority prior to discharge into such system.
119. Vehicles carrying spoil or rubble to or from the site shall at all times be covered to prevent the escape of dust or other material.
SCHEDULE 1E CONDITIONS
CONDITIONS TO BE COMPLIED WITH PRIOR TO ISSUE OF OCCUPATION CERTIFICATE AND PRIOR TO COMMENCEMENT OF USE, TO THE SATISFACTION OF THE PRINCIPAL CERTIFYING AUTHORITY
120. An Occupation Certificate (form 12 under the Environmental Planning and Amendment Regulation 1998) must be obtained from the Principal Certifying Authority (PCA) (Council or a private accredited certifier) and a copy furnished to Council in accordance with Section 79L of the Environmental Planning and Assessment Amendment Regulation 1998 prior to commencement of occupation or use of the whole or any part of a new building, an altered portion of, or an extension to an existing building. A copy of the certificate shall be submitted to Council if it was not the PCA.
121. All materials used in the building shall comply with specification C1.10 of the Building Code of Australia.
122. All doors serving as required exits or forming part of a required exit shall be provided in accordance with D2.19, D2.20 and D2.21 of the Building Code of Australia. Where it is proposed to fit a lockset, failsafe device or any security equipment to a door, a Compliance Certificate (form 10 of the Environmental Planning and Assessment Regulation 1994) shall be obtained to the satisfaction of the Principal Certifying Authority (Council or a private accredited certifier) prior to installation.
123. Any door, shutter, grille or the like which is installed in a path of travel to a required exit shall be provided in accordance with D2.21 of the Building Code of Australia. Where it is proposed to fit a lockset, failsafe device or any security equipment to a door, a Compliance Certificate (form 10 of the Environmental Planning and Assessment Regulation 1994) shall be obtained to the satisfaction of the Principal Certifying Authority (Council or a private accredited certifier) prior to installation.
124. Any proposed electronic locks shall comply with the following:
- (a) The electronic locking device shall be power energised to the locking mode and shall be deactivated to release upon direct or response power termination to the device to enable the door to be opened by single handed action in the direction of egress;
(b) The smoke detectors shall be provided on both sides of the security door, 1500mm from the centre of the door in the position described in Clause 5.7.5 of AS 1905.1 (1990);
(c) The locking device shall consist of an approved electronic door interlock system such that in the event of fire being detected by the building's sprinkler system and smoke/thermal alarm system (including smoke detectors required in the mechanical ventilation system by AS 1668 (1991)), the locking system will be deactivated to release by the termination of power to enable the door to be opened by single-handed action in the direction of egress;
126. The efficient operation and performance of any mechanical ventilation, air pressurisation or other smoke control system must not be impaired by the partitioning layout. Adequate relief/transfer air openings must be provided to ensure the performance of systems during fire and non-fire conditions is not impaired.
127. A Fire Safety Certificate (form 15 under the Environmental Planning and Assessment Amendment Regulation 1998) must be furnished to the Principal Certifying Authority (PCA) (Council or a private accredited certifier) for all of the items listed in the Fire Safety Schedule forming part of this approval prior to any consent for occupancy/partial occupancy being granted. A copy of the Certificate must be submitted to Council if it was not the PCA.
128. All glazing materials shall be selected and installed in accordance with the relevant provisions of AS 1288 S.A.A. "Glass Installation Code".
129. The development shall comply in all respects with the Building Code of Australia.
130. Prior to issue of an Occupation Certificate or use of the premises, a Structural Inspection Certificate OR a Compliance Certificate (Form 10 of the Environmental Planning and Assessment Regulation 1998) must be submitted to the satisfaction of the Principal Certifying Authority (PCA) (Council or a private accredited certifier) after :
- (a) The site has been periodically inspected and the structural certifier is satisfied that the Structural Works are deemed to comply with the final Design Drawings; and
(b) The drawing revisions listed on the Inspection Certificate have been checked with those listed on the final Design Certificate/s.
(c) A copy of the Certificate with a microfilm set of the final drawings shall be submitted to Council if it was not the PCA.
- An appropriately qualified practising structural engineer certifying must have:-
(i) Appropriate tertiary qualifications in Civil or Structural Engineering, AND ;
(ii) Corporate membership of the Institution of Engineers Australia or equivalent; AND
(iii) Evidence of relevant experience in the form of a CV/Resume;
(iv) Appropriate current professional indemnity insurance.
An appropriately qualified practising structural engineer certifying by issuing a Form 10 Compliance Certificate must have accreditation as a certifier for Structural Engineering issued by the Institution of Engineers Australia in accordance with the Environmental Planning and Assessment Act 1979.
131. All land titles within the site must be consolidated into one lot. A plan of consolidation in a form capable of registration shall be lodged with the Land Titles Office prior to issue of a Occupation Certificate under the Environmental Planning and Assessment Act 1979.
WASTE MANAGEMENT CERTIFICATION OF COMPLETION
132. Certification of completion of waste handling works in accordance with the relevant Development Approval Conditions and Councils Code for Waste Handling in Buildings 1994, must be submitted to the satisfaction of the Principal Certifying Authority (PCA), (Council or a private accredited certifier) prior to the issue of an Occupation Certificate under the Environmental Planning and Assessment Act 1979 or prior to use of the premises. A copy of the Certificate shall be submitted to Council if it was not the PCA.
- Such Certification must be given by the Architect or other appropriated qualified person experienced in Waste Handling Design and Environmental Management.
133. The following is required:
- (a) A commemorative plaque must be incorporated in the new building, in a prominent position at ground floor level at or near the main entrance to the building, to commemorate the major participants in the development. The details contained on the plaque are to include the names of the developer, architect, and consent authority and the year in which the building was completed.
(b) The proposed location of the plaque and details of its proposed size, colour and materials, and text must be submitted for the approval of Council prior to issue of an Occupation Certificate under the Environmental Planning and Assessment Act 1979.
(c) The approved plaque must be installed prior to Occupation.
134. Prior to issue of an Occupation Certificate street, numbers and the building name, shall be clearly displayed at either end of the ground level frontage in accordance with the “Policy on Numbering of Premises within the City of Sydney”. If new street numbers or a change to street numbers are required, a separate application shall be made to Council.
STREET NAME PLATE
135. Council’s standard street name plate shall be affixed to all street frontages of the building, visible to both pedestrian and vehicular traffic. The signs shall be obtained and installed at no cost to Council. (Contact the Team Leader – Urban Domain, Service Planning Policy).
TEMPORARY STRUCTURES WITHIN THE PUBLIC WAY
136. Any temporary structure, whether shoring, anchors or footings installed in the public way below pavement level shall be removed prior to completion of the project to a depth of two metres, and the void is to be backfilled with stabilised sand (14 parts sand to 1 part cement), in accordance with the requirements and to the satisfaction of Council and evidence of such is to be submitted to the Principal Certifying Authority (Council or a private accredited certifier) prior to issue of a Occupation Certificate.
137. Any intruder alarm must be fitted with a timing device in accordance with the requirements of Regulation 12A of the Noise Control Act, 1975, and Australian Standard 2201, Parts 1 and 2 - 1978, Intruder Alarm Systems.
138. Prior to issue of an Occupation Certificate and/or prior to commencement of the use the building owner must ensure that there is a contract either with Council or a licensed contractor for the removal of trade waste . No garbage is to be placed on the public way eg. Footpaths, roadways, plazas, and reserves at any time.
139. Prior to issue of an Occupation Certificate and/or commencement of the use of the premises, all required contracts or arrangements for the collection and removal of wastes and recyclable material must be finalised.
140. Prior to commencement of the use, the owner or occupier of the premises must apply to Council for the registration of water-cooling systems (cooling towers and evaporative condensers), evaporative cooling systems and warm-water systems which heat and deliver water at less than 60 o C at each outlet installed on the premises.
141. The premises must be ventilated in accordance with the Building Code of Australia and Council’s Ventilation Code.
142. All evaporative cooling warm water or water cooling systems installed on the premises must comply with the Public Health Act 1991 and Public Health Regulation 1991 and be registered by Council.
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