Oceania Clarke Pty Limited v Sydney City Council
[2003] NSWLEC 245
•08/29/2003
>
Land and Environment Court
of New South Wales
CITATION: Oceania Clarke Pty Limited v Sydney City Council [2003] NSWLEC 245 revised - 9/03/2005 PARTIES: Oceania Clarke Pty Limited
Applicantv
Sydney City Council
RespondentFILE NUMBER(S): 10102 of 2003 CORAM: Murrell C KEY ISSUES: Development Application - Development Consent - Development Control Plan - Development Standards :- Conservation area
Streetscape
Floor space ratio
ParkingLEGISLATION CITED: Environmental Planning and Assessment Act 1979
South Sydney Local Environmental Plan 1998CASES CITED: Zhang v Canterbury City Council [2001] 115 LGERA 373 DATES OF HEARING: 26 and 27 June 2003 DATE OF JUDGMENT:
08/29/2003LEGAL REPRESENTATIVES: S Griffiths, solicitor
B Goldsmith, agent
Pike Pike & Fenwick
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
10102 of 2003
29 August 2003Murrell C
- Applicant
- Respondent
1 This is an appeal under section 97 of the Environmental Planning and Assessment Act 1979 (the Act) against South Sydney Council’s refusal of a development application for the site known as 46 Kings Cross Road, Kings Cross. The boundary of the South Sydney and Sydney City Council has been amended and the relevant authority is now the Sydney City Council. The subject site is 295 m2 and is on the corner of Ward Avenue, Kings Cross Road with rear lane access to Godrick Lane.
2 The development application is for the addition of two storeys to an existing residential flat building which currently is six storeys. The proposal is to add an additional four units, two x 1 bedroom and two x 2 bedroom units to the development. The development was approved by the Land and Environment Court in 1997 and the subject development application for the additional two floors plus a convenience store at the ground level and a landscaped rooftop was refused by the South Sydney City Council in 2002.
3 By way of background only it is noted that prior to the approval of the current building on the site, there was an application for a seven storey building that the Council previously refused. The role of the Court in this matter is to assess the current proposal, that is the additional two floors. Currently the subject development is some 16 metres in height. With the proposed additional two floors it would be 21.5 metres to the underside of the ceiling of the top level.
4 The development controls are contained in the South Sydney Local Environmental Plan 1998 and there are a number of relevant provisions. The subject site is within the Elizabeth Bay Conservation Area known as C19. There are no heritage buildings, as such, in the vicinity of the site and the street is not nominated as a heritage streetscape in terms of the LEP. However the relevant considerations are with respect to cl. 22, relating to the heritage conservation where the consent authority must not grant consent for a heritage conservation area unless it is of the opinion that is consistent with a number of objectives including:
“ (e) to ensure that any development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of conservation areas; and (f) that any development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of landscapes and architectural styles which define the character of heritage conservation areas.”
5 The subject site is in a zone known as number 10, the Mixed Use zone, and there are a number of objectives to that particular zone. I will not state them in this verbal judgment but suffice to say they are not central to the issues in these proceedings.
6 The council prepared a Statement of Issues and in summary this includes the exceedence of the floorspace controls. The development control plan sets out a number of controls or guidelines and the development control plan provides for a floor space ratio of 3 to 1 with a bonus of 0.25 to 1. The development on the site has an existing FSR 3.25 to 1, having effectively been given the bonus at the time the consent was granted in 1997. The proposal would increase the floor space ratio to 4.53 to 1 and there are a number of controls and aims which I will highlight when I refer to the specific issues of this case. The other relevant control is the height control. There is a 24 metre height control over the subject site and the proposal does not exceed this.
7 Other relevant planning provisions are contained in the DCP for access and parking where it does allow for consideration of parking requirements having regard to the infrastructure of an area. It also provides a table in terms of the provision that is required for residential flat buildings. The subject development is currently deficient in car parking by one space. There are twelve spaces provided on site and the proposal would generate a demand for four more spaces.
8 Also relevant to an assessment is the State Environmental Planning Policy Number 65. The subject development is to be considered under the transitional provisions of the State Policy and it requires an assessment of the proposed development in terms of the principles enunciated in the Policy.
9 The Development Control Plan that contains detailed provisions is called the Urban Design DCP of 1997. In summary the aim of the plan is to encourage design that enhances and contributes to the city’s heritage, including its heritage items, conservation areas, precincts of special character and contributory buildings. The provisions relating to urban design for buildings and heritage are: to ensure development fits into the streetscape and general character of the area; development is sympathetic to the prevailing height, bulk, scale, design and external appearance of adjacent buildings; and to protect the city’s heritage including conservation areas.
10 The less significant issue that council raised in its Statement of Issues concerns: amenity, and that the proposed convenience store/coffee shop was not consistent with the LEP in terms of the objectives. Concerning the hours of operation of the convenience store, suffice to say that the expert town planners conferred prior to the hearing and it was considered that an appropriate condition could resolve this issue by restrict the hours to a shorter time period of 7am to 10pm.
11 The more significant issues in the proceedings are with respect to streetscape and heritage conservation area. And the scale of the proposal or the height of the development with respect to the adjoining four storey and three storey buildings to the west of the subject development. Council argued that it would result in an incongruous stepping up of development, in terms of height in the streetscape, contrary to the topography and the provisions of its instruments, in particular cl. 22 and 23A of the LEP.
12 Parking was also raised as an issue in that the current development provides for inadequate parking and the proposal would only exacerbate parking in the area. Other issues identified by the council are: solar access and natural light with respect to the adjoining building at 42 to 44; quality of design in terms of the principles established in SEPP 65; and the public interest.
13 Evidence was given to the Court on behalf of the applicant by Mr Andrew Ludvik, consultant town planner and by Mr Robert Staas, heritage consultant. Evidence was given to the Court on behalf of the council by Mr Peter Moffit, architect and heritage consultant and Ms Kerry Gordon, a consultant town planner. A number of resident objectors also gave evidence to the Court including Mr Drummond, Mr Ford and Miss Williams of Altair, the relatively new high rise development on the southern side of Kings Cross Road, opposite the subject site, and Ms Hayes, a resident of number 42-44.
14 I will say at the beginning that the issue that became determinative in these proceedings relates to the conservation area and streetscape and it is for these reasons that I have considered that it is an inappropriate development and that the appeal should be dismissed. My reasons are set out below.
15 With respect to the other issues that were raised by the council, the issue of solar access in terms of the adjoining building at number 42 to 44, I did not consider that this was a matter that would warrant refusal of the application. There is no impact with respect to the winter solstice. There is some impact with respect to summer sunlight and sunlight during the equinoxes, however, I am of the opinion that the setback that currently is afforded number 42 to 44 is satisfactory and the impact in itself would not warrant refusal of the application.
16 With respect to the residents’ concerns from the building in Altair, who were concerned about an increased height of the proposed development, clearly the development is within the 24 metre height limit and therefore there could have been an expectation that a building may have been developed to that height. I am of the opinion that the impacts on these people would not warrant refusal of the application either.
17 The issue of car parking is one that on its own may not warrant refusal of the application. However, I agree with the respondent in that I do not consider that one could expect there to be a nil demand generated, as per the consultant’s report for the applicant. While there may be a variation to the number of car parking spaces required in terms of council’s DCP for the subject site, nonetheless, there would certainly be a deficiency with the additional two floors of residential flat building.
18 The determinative issue in these proceedings is that of the streetscape character and the conservation area in terms of the importance of the group of buildings 22 to 44, that are of the inter-war period.
19 I have given this proposal careful consideration and the applicant has cited council’s policy with respect to bonus floor space as inviting applications. Council has a scheme, described in a guide to council’s bonus floor space system, whereby on approval deeds of agreement are entered into and the moneys are to go towards developing public domain improvements. It is noted that this is outside of the section 94 provisions of the Act. I note that the guide states with respect to its relationship to section 94: “the FSR bonus system is a voluntary agreement that is to be applied independently of the compulsory requirements of section 94.”
20 There were some questions raised during the proceedings as to whether the scheme was one that provides a nexus and that is not a matter for the Court in these proceedings. In this case a condition of a deferred commencement stated the applicant was to enter into a deed of agreement prior to the consent operating. This would have the effect of the applicant paying somewhere in the vicinity of some $38,500 for public domain improvements in the area.
21 That having been said, whilst the applicant had interpreted that additional floor space could be purchased, the Court cannot ignore the provisions of the Development Control Plan in terms of its objectives, intent and spirit, nor can it ignore the provisions of the LEP in terms of cl. 22.
22 In terms of my assessment that the proposal would not be in keeping with the streetscape, it is necessary first of all to provide a description. The subject site, as I stated, is on the corner of Ward avenue and Kings Cross Road. It is already some five and a half metres above the adjoining building at number 42 to 44 and I agree with the council’s heritage officer and the consultant in these proceedings, Mr Moffit, that this in itself provides an end and definition to the street. The buildings No. 22 through to 44 are three and four storey at the street level, one has a rear extension or addition which takes it to some six storeys at the rear. At 16 to 20 there is a building seven to eight storeys. Opposite the building, as I have stated, there is high rise. It is also noted that the high rise buildings of Elan and Altere are not within the conservation area.
23 The building immediately opposite in Ward Avenue, on the north east corner, is some nine storeys in height and the applicant argued that this provides justification for an additional two floors to the subject building. However, I agree with Mr Moffit’s evidence that the additional two floors would have a detrimental effect on the reading of the streetscape of the buildings of the inter-war period, No. 22 through to 44. The series of buildings of this inter-war period are important in the streetscape and they represent a most cohesive group.
24 The development at its current height of six levels, five storeys of residential and its increas in height relative to No 44 demonstrates a appropriate relationship with the adjoining buildings which respects their importance to the streetscape. An additional two floors on the subject building, in my opinion, would have a negative impact on this cohesive group of buildings. I agree with the applicant, that as one goes further west the relationship is not clearly appreciated, but when one is on the eastern side of Kings Cross Road and Ward Avenue it is seen as an important streetscape in this conservation area. The applicant argued that this has not been designated as a heritage streetscape of significance, but nonetheless the provisions for the conservation area are important and should be upheld.
25 In terms of the Court of Appeal Judgment in Zhang v Canterbury the Court must give ‘proper, genuine and realistic consideration' to the provisions of the Development Control Plan and it must be treated as a fundamental element or a focal point of the decision making process. In this regard the Development Control Plan has a number of specific aims and objectives that relate to building, form and appearance and this is where the controls of the floor space ratio and height are brought into effect. In terms of the floor space ratio and height, the DCP identifies the potential for maximum limits of development. However, the DCP states maximum limits may not be achievable in all instances.
26 The proposal is not one that achieves the maximum of 24 metres but having regard to the relationship with the adjoining buildings, that is the inter-war group of buildings, a height limit of 24 metres on the subject site would not provide an appropriate relationship and would not be consistent with the other provisions of the LEP or DCP.
27 The floor space ratio control has a number of constraints in terms of the DCP which includes streetscape and the objective of the floor space ratio control is to control the floor space of development to ensure its intensity respects and reflects the overall built form and does not detrimentally affect the amenity of the area. In my opinion, the proposal would affect the area in terms of the streetscape and in terms of section 79C(1)(b) the impacts on the built environment are not satisfactory or acceptable in the circumstances of this case.
28 The topography is another factor which must be taken into consideration and is also reflected in council’s controls whereby the land at this point slopes down and the controls call for lower buildings in such positions. The building is already higher than the adjoining buildings and that relationship is satisfactory and was previously deemed to be satisfactory in the original approval by the Court. Adding an additional two floors to increase the difference in the height to some eight metres would not respect and would not be consistent with the controls.
29 As my reasons for refusal have been determined on the basis of the conservation area/streetscape issue, it is not necessary for me to assess the application further in terms of the convenience store. However, it would appear that the expert planners consider that provided the operating hours are limited from 7am to 10pm, that there would not be any great objection to the convenience store. By way of comment I will state that Kings Cross and the mixed development area is one where one can expect a number of and variety of uses to be accommodated and clearly that is reflected in the objectives of the zone and a convenience store in my opinion, would not be inconsistent or antipathetic to these.
30 It is noted that the council’s planning officers report recommended that the development application be approved. It is also noted, however, that the heritage planner at the time of assessing the application stated that:
The justification in the statement of environmental effects for the additional height will provide a corresponding book end to Frances Hall at number 16 and a gateway with a nine storey contemporary building on the opposite side of Ward Avenue which is further down the hill. One could argue that this is already the case with the existing building, which is a dominant element in the street and already markedly higher than its immediate neighbours to the west. The additional height sought is indeed questionable.
31 It is also noted in the officer’s report that the urban designer of council did not support the proposal on the grounds of overdevelopment. While I do not have the benefit of this report, however, on the basis of Mr Moffit’s evidence in this case, I agree that the proposed development of the additional two floors would be detrimental to the streetscape and not consistent with the conservation objectives.
32 Also in terms of SEPP 65 I am not persuaded that the proposed development satisfies the principle of the context in that the proposed additional two floors does not respond to the context. It is also interesting to note that in the council officer’s report and the applicant’s planner’s report, that in fact there was a great deal of attention given to the nine storey building opposite in Ward Avenue on the opposite corner, separated by a road and the 20 storey Altere building and an approved development behind the subject site. There was little attention given to the fact that this building is the end of a row of a most cohesive inter-war period of three and four storey buildings. With respect to built form, the building, as it is, reflects the intentions of the controls of council but with an additional two floors it would be antipathetic. Mr Moffit also states:
As such it would degrade the heritage significance of the group of buildings as contributory buildings to the conservation area and it would change the subject building from a positive to a negative in terms of detracting from the heritage significance of the remainder of the group.
33 There was a great deal of discussion about whether in fact the subject building on the site is a contributory element. In my assessment, I do not think it is necessary to determine whether it is a contributory building or not. However, it is at least neutral and does not detract from the other three and four storey buildings to the west of the subject site.
34 In conclusion, on the basis of my assessment, the development application should be dismissed. In terms of the relevant provisions it is inconsistent with the LEP 1998 for South Sydney, that is cl. 22, in particular (e) and (f), and the provisions of the development control plan when read as a whole. And in terms of 79C(1)(b) the proposed development would impact unreasonably on the built environment. I am also not satisfied that the proposed development is satisfactory in terms of the principals of SEPP 65.
35 Therefore the orders of the Court are:
1. The appeal in respect of the development application submitted for 46 Kings Cross Road, Kings Cross is dismissed.
2. The development application submitted to the then South Sydney City Council, and as amended, for the addition of
two residential floors on the existing building and a ground floor convenience store is determined by the refusal of
consent.
3. The exhibits are returned.
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