Nuova Surry Hills v Sydney City Council
[2004] NSWLEC 292
•06/08/2004
Land and Environment Court
of New South Wales
CITATION: Nuova Surry Hills v Sydney City Council [2004] NSWLEC 292 PARTIES: APPLICANT
RESPONDENT
Nuova Surry Hills
Sydney City CouncilFILE NUMBER(S): 11316 of 2003 CORAM: Talbot J KEY ISSUES: Development Application :- non-compliance with numerical controls - unacceptable levels of amenity
LEGISLATION CITED: State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development
South Sydney Development Control Plan
Residential Amenity PolicyCASES CITED: DATES OF HEARING: 07/06/2004, 08/06/2004 DATE OF JUDGMENT: 06/08/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr C McEwen (Barrister)
SOLICITORS
Staunton Beattie
Mr J Robson (Barrister)
SOLICITORS
Abbott Tout
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
11316 of 2003
8 June 2004Talbot J
- Applicant
- Respondent
Introduction
1 This is an appeal by reason of a deemed refusal of a development application lodged with Sydney City Council (“the council”) on 5 August 2003.
2 The proposal for development is alterations and additions to the existing Cambridge Park Inn at 212-218 Riley Street, Sydney, including internal replanning, the addition of one extra storey and lateral extension onto the adjoining vacant property at 220-222 Riley Street to provide 115 apartments with a mix of 54 one-bedroom or studio apartments, 58 two-bedroom apartments and 3 three-bedroom apartments on a consolidated site.
3 The land is within an area previously in South Sydney in zone 10, which is a Mixed-Use Zone. There is no issue that the proposal is permissible as a consequence of the retail uses proposed along the Riley Street frontage of the ground floor.
4 Stated compendiously, the issues are that the proposal for the residential accommodation either does not comply with the numerical controls of South Sydney Development Control Plan (“DCP”), the council’s Residential Amenity Policy (Part 6 Central Sydney DCP 1996) or the Residential Flat Code pursuant to State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Development (“SEPP 65”) in relation to residential flat buildings or provide adequate amenity in a broad sense. The greater non-compliance is in respect of the Sydney City controls which are applied by a resolution of the council following the transfer of parts of the former South Sydney area to the City of Sydney in 2003. Although the controls in the planning instruments are indicative of acceptable amenity the council concedes that achieving a satisfactory level of amenity is not dependant upon strict compliance with the controls.
5 The council’s claim is that the non-compliance generally results in unacceptable levels of amenity, particularly as a consequence of the low floor to ceiling height in the existing building which is to continue across to the new building. In particular, and in addition to floor to ceiling height, it is contended the development includes unit and private open space areas that are undersize. Inadequate separation of balconies from adjoining buildings and possible limitation of development of an adjoining site also remain as issues. There are a number of peripheral issues raised which in themselves are not determinative and are largely subsumed in the general issues described above.
6 The primary plank of the council’s case is that the reduced amenity for permanent residents as a consequence of the inadequate non-complying floor to ceiling height throughout the two sites is not compensated by a balancing improvement of amenity in other respects, such as more generous floor space and increased balcony size. The applicant concedes that the number of units achieved by the proposed design will result in the provision of a greater number of units than that which can be achieved if the council’s demands are satisfied, notwithstanding that the proposed yield is less than the yield of 121 that can be achieved by implementing two (already granted) deferred commencement development consents for the sites.
7 The Court has inspected the property and evidence has been received orally from the respective town planners to explain the reasons for their disagreement in relation to matters they have been unable to resolve in joint conference. The council’s planner, Sue Foster, contends that the majority “of units (78 out of the proposed 115) do not comply with minimum size requirements prescribed under Council’s Residential Amenity Policy”. Moreover, she says while “a number of these non-compliances are relatively minor around half of the units (56 units or 49%) are significantly undersize by between 5m2 and 20m2”. Ian Cady, the town planning consultant engaged by the applicant, produced the following table comparing proposed unit sizes to the Sydney DCP – Control and the Residential Flat Code “rules of thumb” (sic):-
CodeStudio 1 bedroom 2 bedroom 3 bedroom
8 The proposed height of the existing building will be 45.9m and the extension to the south will rise to 29.65m. These heights contrast to the prescribed height limit of 18m in the South Sydney DCP.
9 The following table produced by Ms Foster shows a comparison of the proposed unit mix with the requirement of the two DCP’s:-
| Residential Apartments | Clause 6.1.27 Requires | South Sydney Urban Design DCP | Proposed |
| Studios & 1 bedrooms | <45% | 30% | 5446% |
| 2 bedroom | >40% | 42% | 5849% |
| 3 bedroom | >15% | 18% | 33% |
| 4+ bedroom | - | 10% | 00 |
| Total | 100% | 100% | 115100% |
10 If the development had been confined to the existing building then the shortcomings in the proposal may have been tolerated to facilitate adaptive re-use of an existing structure. However, the extension to the south seeks the indulgence of continuing the inadequate floor to ceiling height without adequate compensation by increased amenity in both the existing building and proposed additions, namely increased individual floor spaces, together with a modest increase in balcony spaces. I do not accept that it is reasonable to consider this integrated application solely in the context of a building conversion as Mr Cady suggests.
11 Although not pressed as determinative or a major issue, the prospect of re-development of the property to the south can potentially severely impact on the amenity of bedrooms and balconies set back 1.8m to 2.5m from that boundary. Redevelopment of the adjoining property, if it occurs, is only constrained by an 18m height limit. Mr Cady concedes that the proposed glazing at upper levels on the southern elevation could be obscure and still provide light access to supplement the openings in the eastern and western walls. Furthermore, he agreed with the suggestion that the balconies at the eastern and western end of the southern elevation could be beneficially re-configured. Ms Foster also agrees that obscure glazing may limit the potential for conflict with existing and future development to the south. Even if the issues relating to the southern elevation can be resolved by some re-design, that would not resolve the overall lack of amenity throughout the development, particularly within the existing structure.
12 A principal concern of the council is that the dimension and size of units does not promote a range of options for future long-term residents. Moreover, and I agree with Ms Foster in this regard, there are demonstrated storage space deficiencies and many of the open living spaces are already sub-minimal, irrespective of the numerical controls. Regardless of the numerical controls the council submits the mix of units is inappropriate and not sufficiently broad, particularly in respect of the deficiency of the number of 3 bedroom units. The applicant’s response unsupported by any direct evidence to that effect is that there is limited market demand for 3 bedroom units in this part of Sydney.
13 Narrow balconies result in limited outdoor space and restrict opportunities to be seated and to provide an area for outdoor activities. Lack of dimension in the balconies is compounded by lack of internal space within the units. However Ms Foster agreed with Mr McEwen in cross-examination that the provision of communal open space is adequate.
14 It is specious for Mr Cady to argue, as he does, that if a purchaser finds that a unit is too small for permanent occupation they have the option to convert the use to a serviced apartment. The council control documents do not appear to distinguish between long stay serviced apartment accommodation and permanent residency. In my view, contrary to the opinion of Mr Cady, it is not appropriate to judge the planning merit of the proposal against the comparative merit of the two existing consents or the motel on the site, firstly because in my opinion that is not a proper determinative planning consideration and secondly because the earlier consents do not involve integration of the two buildings and the motel is in a totally distinct context.
15 The council claims that the elements of 1 bedroom elongated apartments facing Lower Campbell Street do not respond to the existing residential development opposite. Ms Foster told the Court that these units should be reconfigured to deal with this issue. Quite reasonably she declined the opportunity to suggest how this might be done. However, increasing balcony floor area by adding to the depth into the building for units facing the narrow rear street arguably might assist with a resolution of issues in respect of separation distances from the neighbouring properties on the east raised by the council and objectors.
Conclusion
16 Having considered the evidence, both written and oral, and assisted by the view of the site, I have concluded that the overall level of amenity of the proposed development is unacceptable.
17 It is not practicable or desirable for the Court to express an opinion about how a satisfactory level of development could be achieved. It is sufficient to say nevertheless that the constrained floor to ceiling height demands compensating measures in terms of living space to bring the level of amenity up to a satisfactory standard. It is the deficiency of indoor living space and balcony areas that leads to refusal of consent.
18 The orders of the Court, are:
1. Appeal dismissed;
2. Development Application lodged 3 August 2003 for the conversion of existing premises 212-218 Riley Street, Surry Hills and construction of a linked new residential apartment building 220-222 Riley Street, Surry Hills is determined by the refusal of development consent;
3. The exhibits may be returned.
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