Potts Point Project 1 Pty Ltd v The Council of the City of Sydney

[2023] NSWLEC 1288

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Potts Point Project 1 Pty Ltd v The Council of the City of Sydney [2023] NSWLEC 1288

Hearing dates:

17 – 18 May 2023

Date of orders:

09 June 2023

Decision date:

09 June 2023

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The Applicant is granted leave to amend the application to rely on the documents listed at Condition 1 of the Conditions of Consent at Annexure A.

(2) The appeal is upheld.

(3) Development Application No. 2022/319 for the demolition of the existing building and construction of a part six, part four storey residential flat building, at 30A-34 Brougham Street, Potts Point, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

(4) The exhibits, other than Exhibits 1 and A, are returned.

Catchwords:

DEVELOPMENT APPLICATION – amended proposal – no contentions – one disputed condition of consent

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.65, 10.10

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cll 4, 28

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Sydney Local Environmental Plan 2012, cll 5.10, 5.21, 6.21B, 6.21C, 7.5, 7.19, Sch 5, Pt 2

Texts Cited:

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

Potts Point Project 1 Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
S Berveling (Respondent)

Solicitors:
Mills Oakley (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2022/188445

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 2022/319 for the demolition of the existing building and construction of a part six, part four storey residential flat building (the proposal), at 30A-34 Brougham Street, Potts Point (the site), by The Council of the City of Sydney (the Council).

2. The appeal was subject to conciliation on 14 October 2022, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 22 November 2022, pursuant to s 34(4) of the LEC Act.

The application is amended

3. The Council submitted that the contentions raised in the Amended Statement of Facts and Contentions (Ex 1) were resolved to the Council’s satisfaction by the amendments made to the proposal in the final iteration of architectural plans, for which leave was sought, unopposed and granted (Ex H) (the amended proposal).

4. The Applicant opposes a condition of consent sought to be imposed by the Council, Condition 3(c), which is in the following terms:

“The spa pool in the communal open space is to be deleted”

The site and its context

5. The site is on the eastern side of Brougham Street, to the north of Rowena Place. The site has an area of 604.9m² and a frontage to Brougham Street of 26.4m. There is a cliff face at the rear of the site.

6. The site is legally identified as Lot 1 in DP 621736 and Lots 1-16 in Strata Plan 19358.

7. Surrounding development includes a mix of commercial and residential uses with buildings of various heights and scales.

The amended proposal

8. The amended proposal is for a part six, part four storey residential flat building (Ex H) and includes the following:

• Two levels of basement car parking accessed from Brougham Street and a car lift at the northern end of the street façade;

• 13 residential apartments; and

• Communal open space including a spa pool on the roof of the four-storey component of the proposal on the southern side of the site.

Public submissions

9. Six resident objectors gave evidence at the commencement of the hearing on site and the Court, in the company of the parties and their experts, viewed the site from a number of properties to the east of the site. Their concerns can be summarised as:

• The proposal will have an unacceptable impact on the western views of the city across the Domain from the properties on Victoria Street, to the east of the site.

• The proposal will have an unacceptable impact on the western views from the Butler Restaurant terrace, to the east of the site.

• The proposal is too high for the site and its context.

• The proposal will have an unacceptable impact on the heritage significance of the heritage conservation area and the adjoining heritage items.

Expert evidence

10. The Applicant relied on the expert evidence of Rohan Dickson (urban design), Clare Swan (town planning), John Oultram (heritage), Clare Swan (view impacts), John Braybrooke and Joe Daven (geotechnical engineering) and Julian Brady (landscape).

11. The Council relied on the expert evidence of Julia Pressick (urban design), Samantha Kruize (town planning), Margaret Desgrand (heritage), Dr Richard Lamb (view impacts), David Piccolo (geotechnical engineering) and Kate Yates (landscape).

12. The experts prepared joint reports that were admitted into evidence as: urban design and planning (Ex 5), heritage (Ex 6), geotechnical engineering (Ex 7), view impacts (Ex 8) and landscape (Ex 9).

13. Following the amendment of the proposal (Ex H), the experts were not required to give oral evidence.

Planning framework and consideration

14. I am satisfied that the land is suitable for the amended proposal pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, because the land is presently used for the same purpose, and on the basis of the conclusion of the Preliminary Site Investigation prepared for the site (Ex G).

15. I am satisfied, on the basis of the Arboricultural Impact Assessment (Ex C, tab 5), that the proposal will retain the Fig tree.

16. The former provisions, prior to 21 November 2022, of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) apply to the amended proposal, pursuant to s 6.65 of the BC SEPP. The site is mapped as being within the Sydney Harbour Catchment. I am satisfied that the amended proposal is consistent with the planning principles for land within the Sydney Harbour Catchment, as set out in s 10.10, as the amended proposal includes stormwater and flood mitigation measures as detailed in the Concept Stormwater Management plans (Ex C, tab 18); will maintain the natural assets of the catchment through the retention of trees on the site and the natural state of the cliff face in the eastern portion of the site; complies with the principle development standards and will not result in any significant adverse impacts associated with cumulative environmental impacts; does not result in an unacceptable visual impact as viewed from waterways or foreshores; and does not result in a reduction of the number of publicly accessible vantage points for viewing Sydney Harbour.

17. State Environmental Planning Policy No. 65—Design Quality of Residential Apartment Development (SEPP 65) applies to the amended proposal at cl 4(1). I accept the Applicant’s updated statement addressing the design quality of the amended proposal in accordance with the design quality principles (Ex C, tabs 2 and 3) pursuant to cl 28(2)(c) of SEPP 65.

18. The site is zoned R1 General Residential pursuant to Sydney Local Environmental Plan 2012 (LEP 2012) and residential flat buildings are a nominate permissible use with consent in the R1 zone. The objectives of the R1 zone, to which regard must be had, are:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To maintain the existing land use pattern of predominantly residential uses.

19. The amended proposal complies with the height of buildings development standard for the site of 22m and the floor space ratio (FSR) development standard for the site of 3.5:1.

20. The site is within the Woolloomooloo Heritage Conservation Area (Item C71, Sch 5, Pt 2 to LEP 2012) (HCA). The site is within the vicinity of a number of heritage items. Development consent is required for the demolition of a building in a HCA (cl 5.10(2)(a)(iii) of LEP 2012). Pursuant to cl 5.10(4) of LEP 2012, the consent authority (or the Court exercising the functions of the consent authority) must, before granting consent under cl 5.10 in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. I have considered the effect of the amended proposal on the heritage significance of the HCA and the heritage items in the vicinity, and I am satisfied that the proposal will not detrimentally impact on the identified heritage significance of the HCA or the items, on the basis of the conclusions of the Heritage Impact Statement (Ex C, tab 6).

21. The site is identified as flood prone land, pursuant to cl 5.21 of LEP 2012. On the basis of the Flood and Stormwater Assessment Report (Ex C, tab 11), I am satisfied that the amended proposal is compatible with the flood function and behaviour of the land as the existing site does not provide any flood function with respect to storage or conveyance and the proposal will match the existing flooding function of the site, pursuant to cl 5.21(2)(a) of LEP 2012; that the amended proposal will not adversely affect flood behaviour in a way that results in a detrimental increase in the potential flood affectation of other properties, pursuant to cl 5.21(2)(b); will not adversely affect the safe occupation and efficient evacuation routes and capacity of surrounding area as the proposal includes a shelter in place response to flood evacuation, pursuant to cl 5.21(2)(c); incorporates appropriate measures to manage risk to life in the event of a flood, pursuant to cl 5.21(2)(d); and will result in a neutral or beneficial impact on the environment when compared with the existing situation, pursuant to cl 5.21(2)(e).

22. The design excellence clause, cl 6.21C of LEP 2012, applies to the proposal at cl 6.21B(1). Clause 6.21C(2) requires the consent authority, or the Court exercising the functions of the consent authority, to have regard to the list of matters under subcl (2). I have had regard to the list of matters under subcl (2) in relation to the amended proposal and I am satisfied, on the basis of the evidence before me, that the amended proposal exhibits design excellence, because it achieves a high standard of architectural design, materials and detailing appropriate to the building type and location; the form and external appearance of the amended proposal will improve the quality and amenity of the public domain; the amended proposal does not detrimentally impact on view corridors; the amended proposal maintains the existing use which is suitable on the land, and the design is an appropriate heritage response to the context; the bulk, massing and modulation of the amended building envelope is appropriate, the street frontage heights and the environmental impacts are acceptable; the amended proposal achieves the principles of ecologically sustainable development; the amended proposal improves the presentation to the public domain when compared to the existing development, achieves an appropriate interface with the public domain at ground level and suitably integrates landscape design. I have reached this conclusion on the basis of the amended Design Verification Statement, the amended SEPP 65 and Apartment Design Guide Compliance Statement, the amended architectural and landscape plans, the evidence in the joint report of the heritage experts and the joint report of the urban design and planning experts.

23. The proposal complies with the maximum car parking rate for residential developments under cl 7.5 of LEP 2012.

24. I am satisfied that the site will be redeveloped under the same consent that authorises the demolition of the existing building, pursuant to cl 7.19 of LEP 2012.

Disputed condition of consent

25. The Applicant opposes a condition requiring the deletion of the spa within the communal open space atop the four-storey component of the proposal.

26. The Applicant submitted that the communal open space is of a high standard of design and finishes and the area complies with Control (7) of Section 4.2.3.8 Common open space of the Sydney Development Control Plan 2012 (DCP 2012), which is in the following terms:

(7) The minimum consolidated area of common open space will only be permitted above the ground level where:

(a) a location at ground level is not possible due to conditions of the site;

(b) the proposed common open space will provide a similar level of amenity as a common open space at ground level; and

(c) there will be no significant impact on surrounding properties in respect to the loss of privacy.

27. The Applicant submitted that the communal open space is designed to meet the passive and active needs of the residents and is a better space when compared to a space at ground level because a space at ground level is not realistically possible given the topography and constraints of the site. The common open space has not significant impact on the amenity of surrounding properties, particularly privacy, as demonstrated by the fact that the Council agrees with the location of the space, if not the presence of the spa. The Butler Restaurant terrace, to the rear of the site, has a finished floor level (FFL) at RL 26.91, whereas the common open space is 1.3m lower and the top of the spa structure is at RL 26.91, so that the spa structure does not interfere with the view from the restaurant’s terrace. A restaurant does not warrant the same level of privacy from surrounding uses as a dwelling. The spa has no impact on the privacy of the restaurant terrace.

28. The Council submitted that the concern is the overlooking by patrons of the restaurant to the spa, and to a lesser extent, the overlooking by the residents using the spa to the restaurant. Amelioration of the privacy impact would require a screen between the restaurant terrace and the spa and this may impact upon the city views from the restaurant’s terrace.

29. I accept and adopt the Applicant’s submissions and I am satisfied that the inclusion of the spa within the communal open space provided for the residents of the proposal will enhance the amenity of the open space for those residents and will not unduly compromise the privacy or outlook of the patrons of the restaurant. There is no screen proposed between the spa and the restaurant terrace.

Conclusion

30. I accept the submissions of the parties that the contentions have been successfully addressed by the amended proposal in Ex H, to the satisfaction of the experts, with the exception of the planning experts and their disagreement over the spa pool in the communal open space on the roof of the four-storey component of the proposal.

31. In considering the amended plans and documents and agreed Conditions of Consent excluding the condition deleting the spa, and taking the issues raised by the resident objectors into consideration, I am satisfied that it is lawful and appropriate to grant the consent, having regard to the evidence before me.

Orders

32. The orders of the Court are:

1. The Applicant is granted leave to amend the application to rely on the documents listed at Condition 1 of the Conditions of Consent at Annexure A.

2. The appeal is upheld.

3. Development Application No. 2022/319 for the demolition of the existing building and construction of a part six, part four storey residential flat building, at 30A-34 Brougham Street, Potts Point, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

4. The exhibits, other than Exhibits 1 and A, are returned.

Susan O’Neill

Commissioner of the Court

Annexure A 

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Amendments

20 June 2023 - Correction to a typographical error at paragraph [19].

Decision last updated: 20 June 2023