Priansa Pty Ltd v Council of the City of Sydney

[2018] NSWLEC 1447

Land and Environment Court

New South Wales

Medium Neutral Citation:	Priansa Pty Ltd v Council of the City of Sydney [2018] NSWLEC 1447
Hearing dates:	18-19 June 2018
Date of orders:	24 August 2018
Decision date:	24 August 2018
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	(1)   The clause 4.6 request to exceed the height standard for the Lawrence Street building envelope is upheld. (2)   The appeal is upheld. (3)   Concept development application D/2017/238 for a mixed use development and a residential flat building at 163-173 McEvoy Street, Alexandria is approved subject to the conditions in Annexure “A”. (4)   The exhibits are returned, except Exhibits 1, A, B, K and N.
Catchwords:	DEVELOPMENT APPLICATION – concept development application; mixed use development and residential flat building; building envelopes; indicative reference designs; façade treatment including breaks and length to main road; depth of development; interface with adjoining development; height; solar access; cross ventilation on busy road; conditions not agreed; neighbour objections
Legislation Cited:	City of Sydney Act 1988 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Roads Act 1993 State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development Sydney Development Control Plan 2012 Sydney Local Environmental Plan 2012 Water Management Act 2000
Cases Cited:	Nil
Texts Cited:	Apartment Design Guide
Category:	Principal judgment
Parties:	Priansa Pty Ltd (Applicant) Council of the City of Sydney (Respondent)
Representation:	Counsel: M Staunton (Applicant) I Pickles, SC (Respondent)   Solicitors: Jaku Legal (Applicant) Council of the City of Sydney (Respondent)
File Number(s):	2017/299263
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal under then s 97(1), now s 8.7(1), of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by the Council of the City of Sydney (the Council) of a concept development application (the application) for a mixed use development and a residential flat building (RFB) at 163-173 McEvoy Street, Alexandria (the site).

2. The application (D/2017/238) as lodged with the Council in March 2017 proposed the demolition of existing warehouse buildings on the site and removal of existing trees, and three building envelopes over two levels of basement parking accessed off McEvoy Street (the original application). The first building envelope was to accommodate a mixed use development with retail on ground level and residential apartments above up to 6 storeys fronting McEvoy Street. The second building envelope was to accommodate a central RFB up to 6 storeys and the third to accommodate an RFB up to 3 storeys fronting Lawrence Street.

3. Following objections from neighbours and concerns raised by the Council, in September 2017, an amended application was submitted with only two building envelopes (the September 2017 modifications). The first accommodated a mixed use development with retail on ground level and residential above up to 6 storeys fronting McEvoy Street. The second accommodated an RFB up to 4 storeys fronting Lawrence Street. Access was from both McEvoy and Lawrence Streets. The appeal was lodged against the Council’s deemed refusal of this amended application.

4. Following conciliation between the parties, and in response to the Statement of Facts and Contentions (SFC) filed by the Council in response to the appeal, the application was further amended in March, 2018 with the leave of the Court (the March 2018 modifications).

5. The March 2018 modifications changed the building envelopes, nominated where any height exceedence up to 10% may be sought as a result of ‘design excellence uplift’, including an additional 7th storey in McEvoy Street, and provided indicative reference designs showing potential development within the building envelopes. An additional access was proposed off Lawrence Street and access confined to Lawrence Street only, with associated modifications undertaken to the basement parking. Additional design documentation sought by the Council was provided. A total of 153 residential apartments and 4 retail tenancies were proposed.

The site and surrounds

6. The site is located on the western side of McEvoy Street and the eastern side of Lawrence Street. It slopes down from the north-west in a south-easterly direction by approximately 2.8m.

7. The site currently contains a two storey industrial unit development used for a variety of warehousing and related purposes with at-grade parking. There are over 40 trees, predominantly adjoining the street frontages. A substation is located in the eastern corner.

8. McEvoy Street is a four lane arterial road carrying east-west bound traffic between Bourke Street and Euston Road and is a State classified road under the Roads Act 1993. Lawrence Street is a two lane local street with on-street parking on both sides.

9. As shown below, extracted from the Amended SFC (Exhibit 1), the overall site has an 'L' shape. It has a total area of 5570.7m² and a frontage of some 89.4m to McEvoy Street and 59m to Lawrence Street.

10. A variety of uses front McEvoy Street in the vicinity of the site ranging from multi-storey RFBs to light industrial, commercial and retail premises. Lawrence Street is predominantly residential in character. The scale of the surrounding development ranges from 1 to 6 storeys.

11. Immediately north-east of the site is a mixed use development at 147-161 McEvoy Street known as 'Spectrum’ which varies in height from 4 to 6 storeys, has ground floor retail premises over basement parking with 47 apartments, and is adjoined by a communal open space area.

12. To the east, opposite the site at the intersection of McEvoy and Bowden Streets, is a single storey warehouse at 132-138 McEvoy Street. To the south-east and south are 1-2 storey warehouses with vehicle access from McEvoy Street to at-grade parking. To the south-west, at the intersection of McEvoy and Harley Streets, is a 2 storey warehouse building at 175-177 McEvoy Street trading as 'Petbarn'.

13. To the south-west, at the intersection of Lawrence and McEvoy Streets, is a 3 storey RFB at 118-136 Lawrence Street.

14. To the north of the site are a row of six attached contemporary 3 storey townhouses, being 74-84 Lawrence Street.

15. To the west and north-west opposite the site is the 'Cooper Estate' heritage conservation area (HCA). Within the HCA, in proximity to the site, is Bowden Playground at 103A Lawrence Street, attached and detached 1, 2 and 3 storey dwellings, a 2 storey RFB, and mixed use development.

Legislative context

16. The application is classified as a ‘concept development application’ under Div 4.4 of the EPA Act and the provisions of that division apply.

17. The application is also ‘major development’ for the purposes of the City of Sydney Act 1988 where the consent authority is the Central Sydney Planning Committee. The application is also integrated development requiring the approval of WaterNSW under the Water Management Act 2000.

18. The site is located within the B4 Mixed Use zone under the Sydney Local Environmental Plan 2012 (the LEP) with the proposed uses permissible with consent. It is not located in a HCA but adjoins the Cooper Estate HCA.

19. The site is subject to height and floor space ratio (FSR) controls under the LEP with a maximum permissible height of 22 metres to McEvoy Street and 12 metres to Lawrence Street. The site has a maximum permissible FSR of 2.5:1. Subject to achieving the ‘design excellence’ provisions of cl 6.21 of the LEP, the maximum height of development can be exceeded by up to 10%. The ability to apply cl 6.21 is canvassed in the application.

20. Development is also subject to the provisions of the Sydney Development Control Plan 2012 (the DCP). Relevant to this appeal, the site is identified in section 2.7.10 of the DCP as being within the ‘Euston Road and McEvoy Street’ locality to which a locality statement applies. It is also designated on the DCP’s ‘Active Frontages Map’ which requires an active frontage to McEvoy Street. The DCP also contains controls for the maximum building height in storeys, being 6 storeys to McEvoy Street and 3 storeys to Lawrence Street, and for mixed use and RFB development at section 4.2.

21. Development within the designated building envelopes will require separate applications and also be required to comply with the provisions of State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development (SEPP65) and the associated Apartment Design Guide (ADG).

Site view and objector evidence

22. The original application was notified and 108 submissions were lodged objecting to the development. This was on the basis of: adverse visual impacts on the Cooper Estate HCA; inadequate photomontages, perspective views, on-site parking provision, deep soil zone provision and overshadowing details; exposed blank boundary walls; uncertainty from the schemes in terms of environmental impacts; nil setbacks and inadequate separation; tree loss; inadequate assessment in terms of ESD, geotechnical impacts, view loss, and acoustic impacts; the additional demand on local services and infrastructure; health impacts relating to site contamination and remediation works; and excavation and construction related impacts with no construction management plan.

23. Concern was also raised that there had been no assessment of WestConnex traffic and pollution impacts, of traffic and parking impacts generally, or of the amenity impacts associated with light spill, loss of acoustic and visual privacy, outlook, views, security, and solar and daylight access to adjoining and nearby residential development

24. The September 2017 modifications were advertised and 47 objections were lodged. Similar concerns were raised to those associated with the original application with additional concerns raised in terms of the proposal to now provide access off Lawrence Street. The March 2018 modifications were not advertised on the basis they were considered to result in reduced impacts relative to the September 2017 modifications.

25. The hearing commenced on site where the Court viewed the site and surrounds in the company of the parties and their experts.

26. The Court heard from two residents of dwellings within the Spectrum building at 147-161 McEvoy Street. The residents raised concerns with the height of a building up to 7 storeys immediately adjoining their boundaries. This would result in an outlook to a vast blank wall, elevated well above their dwellings, with the resultant loss of amenity both from their living areas and from the adjoining courtyards which currently have an open outlook over the site. This would create an oppressive sense of enclosure. They argued that there would also be a loss of summer light. Treatment should be considered to the external wall to reduce the impact and the loss of amenity to these properties.

27. Residents of 78, 82 and 84 Lawrence Street also spoke advising that all of the occupants of the six townhouses at 74-84 Lawrence Street were concerned with privacy, security, and noise associated with the development relative to the high level of amenity, privacy and aspect these properties currently enjoy. Concern was raised in terms of overlooking of living areas and bedrooms, the loss of outlook, and potential loss of district views from upper floors.

28. The removal of the existing warehouse wall adjoining the courtyard areas of a number of townhouses was also raised as a concern.

29. It was argued that the site is in a transition zone from McEvoy Street (a major thoroughfare) to Lawrence Street (a quiet residential street). Concern was raised with the proposed access from Lawrence Street in terms of noise from garbage trucks and commercial loading as well as the resultant increase in traffic in the street and the loss of on-street parking. Safety within Lawrence Street was also a concern given its high pedestrian use.

30. Finally, a resident from 118-135 Lawrence Street raised concerns with the scale of the development, the impact on solar access and views from her apartment, and the long driveway access proposed from Lawrence Street.

31. The Court, parties and experts visited the properties of objectors to view the site, including from their living areas and outdoor courtyards.

The contended issues

32. The Council raised nine contentions on which the application should be refused. On the basis of expert conferral, information provided prior to the hearing, and further amendments to the plans, the majority of contentions were resolved and the only experts required to give oral evidence on the remaining contended issues were the ‘design experts’.

33. These experts were: the planners, Mr Darroch for the applicant and Mr Reynolds for the Council; and the urban designers, Mr Dickson for the applicant and Ms Pressick for the Council.

34. At the commencement of the hearing leave was sought, not opposed and granted to further amended plans (Exhibit H). These amendments had arisen out of conferral of the design experts and were considered by the Council to be both minor changes and improvements to the application.

35. The amended application proposed a height compliant envelope to McEvoy Street but not for all of the Lawrence Street envelope. An estimated compliant FSR of 2.35:1 was proposed with a total of 155 apartments and 181 car spaces. Compliance or Council satisfaction was achieved in terms of required parking and deep soil landscaping provision.

36. The plans were subsequently further amended during the hearing to address concerns resolved in evidence (Exhibit K). The application as finally amended incorporated the McEvoy Street substation into the design, indicated where height exceedence up to 10% or breaches should be restricted to, and required the future detailed design to respect the fine grain design, subdivision and context of the adjoining HCA. The Council accepted that the clause 4.6 request justified a minor height breach sought to the Lawrence Street building envelope subject to an agreed condition setting the maximum height of both envelopes.

37. The design experts also agreed the building envelopes were compliant with ADG separation requirements. The Council was initially concerned that the reference scheme showed habitable room windows located 4m, rather than the ADG minimum of 6m, from the Petbarn side boundary. This concern was resolved with a redesign of the layout of these apartments.

38. It was agreed that several remaining issues could be resolved by conditions. Certain conditions related to matters required to be addressed in moving from the reference designs the subject of the concept application to the more detailed design of the buildings in future applications. However, a number of conditions were not agreed.

39. Associated with the contended conditions, the Council argued that the remaining issues with the development were the length of the façade to McEvoy Street, without breaks, and the depth of the McEvoy Street envelope which would have amenity impacts for future occupants in terms of natural cross ventilation and solar access.

40. Oral evidence on these issues was provided by the design experts.

Building envelope to McEvoy Street

41. Section 4.2.4 of the DCP is titled ‘Fine grain, architectural diversity and articulation’. It contains objectives with relevant provisions as stated below:

(1)   The maximum street frontage length of an individual building is:

(a)   65m on streets with a width greater than or equal to 18m wide; and

(b)   40m on streets with a width less than 18m wide …

(2)    Where the street frontage of the building exceeds the maximum length identified in provision (1), it is to be broken into two or more buildings each with different architectural characters to the street or public domain.

(3)   Each building facade is to be articulated into smaller elements at a scale or grain that reflects:

(a)   the use of the building and the various components of the building;

(b)   the location of the building, or that part of the building relative to pedestrian or outdoor recreation activity; and

(c)   the details and building elements including building entries, ground floor, lower floors, top floor and roof.

(4)   Any two buildings are required to be separated by full height breaks consistent with the building separation provisions of the RFDC or as per below whichever is greater. Where the lower of the two buildings is (refer to Figure 4.28):

(a)   up to 3 storeys, the break is to be at least 4m wide; and

(b)   4 storeys and above, the break is to have a width of 1m for each storey of the lower building.

For example, where a 7 storey building must be separated from a 12 storey building, a minimum 7m separation is to be provided.

(5)   Within long street blocks, buildings are to be limited in length, have a variety of facades, articulation, massing and architectural character so the street block presents as a group of buildings rather than a single building.

(6)   ...

(7) Where active frontages are nominated on the Active frontages map, two buildings may be separated by adjoining party walls to ensure continuity of active frontages at ground level.

(8)   Design variety is to be consistent with an approved Design Excellence Strategy, refer to the provisions under Section 3.3 Design excellence and competitive design process.

(9)   Any part of a building less than 35m high and in excess of 40m long must be designed with at least two distinct building components, each of which is to:

(a)   have its own architectural character;

(b)   not exceed 25m in length with a preferred length of less than 20m.

42. The Council also considered that the provisions of the DCP at s 4.2.5.3 were relevant. These relate to sensitive uses on sites that have an active frontage or frontage to a busy road that carries more than 20,000 vehicles a day. Sensitive uses included RFBs and mixed use buildings. The provisions provide design solutions to achieve acceptable amenity for residential uses that may be affected by noise from busy roads and active uses.

(1)   Where sensitive uses are proposed, council may require an Acoustic Assessment prepared with reference to NSW Government’s Development near Rail Corridors and Busy Roads – Interim Guidelines.

(2)   Where sensitive uses are proposed, development is to be appropriately designed to minimise the impact of road noise and vibration.

(3)   Where development fronts roads with more than 40,000 vehicles per day, non–residential uses are required on the ground floor and first floor.

(4)   Where development fronts roads with more than 20,000 vehicles per day, non–residential uses are required on the ground floor…

43. The Council contended that the McEvoy Street building envelope is orientated generally south east which had design implications as did the busy nature of the road.

44. Whilst McEvoy Street currently does not carry in excess of 20,000 vehicles per day, the Council submitted that the existing traffic volume will double by 2021 in part as a consequence of the WestConnex project based on RMS advice (Exhibit 5). The DCP provisions would therefore require non-residential use of both the ground and first floor levels.

45. Whilst the applicant agreed to, and was proposing, commercial uses at ground level, Mr Staunton, counsel for the applicant, submitted that the requirement for commercial uses to also be located on the first level was not raised as a contention nor the subject of any evidence. The Council nevertheless sought a condition requiring this. Mr Staunton submitted that, if the objective of maintaining amenity for the uses on the first level is met, this DCP use requirement and numeric need not apply.

46. However, Mr Pickles, senior counsel for the Council, submitted that the contention was raised as part of contention 8A in the Amended SFC (Exhibit 1) and re-iterated it was a DCP requirement. Further, it was not unusual for consent conditions not to be included in SFCs.

43. The DCP also contains provisions for sites greater than 5,000m². Whilst compliance with these provisions was not raised as a contention nor the subject of any evidence, the Council submitted that any future development application would need to address these provisions, one of which requires that at least 5% of all dwellings are to be terrace houses or maisonette apartments, and a condition to this effect was proposed, albeit no such dwellings were proposed in the reference designs nor sought by the Council. This condition was opposed by the applicant.

Length of the McEvoy Street building envelope

48. McEvoy Street has a width greater than 18m and the length of the indicative façade of the building to McEvoy Street is some 89m, well in excess of the 65m required by s 4.2.4(1)(a) of the DCP. Having exceeded the length of 65m, the façade was not broken into two or more buildings, each with different architectural characters to the street, as also required by s 4.2.4(4).

49. The Council accepted that the McEvoy Street building envelope reference design achieved the potential for articulation but argued it did not achieve the breaks anticipated. Instead all that was proposed in an 89m façade were two ‘indents’ 3m deep which, whilst providing some articulation, were too shallow to break up the bulk and scale or provide individual character to each building as the DCP requires.

50. The Council’s design experts argued that the large, singular envelope to McEvoy Street, in combination with its height, would result in a building with excessive bulk, scale and massing to McEvoy Street and would not provide a built form that adequately responded to its context. This could be resolved by breaks in the building as required by the DCP. Such breaks could be designed with a bridging element between the two buildings in order to maintain an effective barrier or shielding element and to allow access between the buildings.

51. Mr Dickson accepted that the DCP provisions in terms of the required breaks to McEvoy Street were not met and regard had to be had to these provisions. However, he argued that the design achieved significant modulation with the two indents essentially resulting in three building elements at upper levels to McEvoy Street.

52. Mr Dickson also argued that the reference designs were indicative only and apartments could be setback further that the 3m indicated to form the breaks if required. Further, the depth of the building envelopes to McEvoy Street were 5m deeper than the building depth at 125 and 93-103 Euston Road, being buildings identified by the Council as poor examples of lengthy front façades to main roads, approved under previous controls, which the Council was seeking to avoid.

53. In terms of the Euston Road examples, Mr Dickson submitted that 125 Euston Road was a building response to a long thin site and he doubted that it had been through a design excellence process.

54. Mr Pickles submitted however, that the elevation read as only one building. Mr Dickson conceded this appeared the case for the front elevation but argued that, from other locations, it would be seen as more than one building.

55. Mr Darroch argued that the experts acknowledged that, because of the future acoustic environment of McEvoy Street, the design could not break the building completely as it would be decreasing amenity internally as a result. In his view, it was just the depth of the indents that were an issue. He argued that the Spectrum building was broken into two but this was not always evident and, whilst the Council referenced poor examples in Euston Road, there were good examples of buildings with no physical breaks.

56. Ms Pressick noted that the building at 125 Euston Road is 87m long and the proposed building footprint in the application was 89m long. She did not believe that two different architects would design two different sides of the building. The reason Spectrum read as one building was because it was the same colour. A building break should be a condition as it flags to competition entrants who are looking to maximise floor space what is required as, if it is not shown on the building envelope, it would not happen.

57. Mr Darroch argued that, in terms of cl 4.2.4(4)(b), where the requirement is for one break of 7m, two breaks of 6m were proposed at full height albeit the Council experts argued what was proposed were shallow ‘indents’ rather than ‘breaks’. There were no dimensions of these ‘indents’ shown. In evidence the Court was advised that two indents were proposed of approximately 12m in length to a depth of 3m. The first occurred some 32m from the Spectrum building and the second some 12m from the Petbarn building.

58. Mr Reynolds indicated that it was not just the depth that was of concern but the width of the proposed breaks. It would be a very long building and very hard to present as two elements. He also considered a wider break was needed for amenity reasons to ensure compliance with ADG controls.

59. Mr Dickson argued that the application drawings were just massing models, not detailed designs. The design excellence competition would require these matters to be addressed including the need to break down the façade with the use of materials to assist.

60. Mr Staunton argued that the provisions of the DCP had to be flexibly applied and, where not complied with, the Council must allow reasonable alternatives that still achieve the objectives of the controls: EPA Act, s 4.15(3A)(b). The Council seeking to impose DCP provisions as conditions of consent binding the detailed design and seeking to dictate a design outcome was contrary to this clause. However, Mr Reynolds remained concerned that the reference designs did not demonstrate that the DCP objectives could be achieved.

61. Council maintained that the McEvoy Street building required a significant break albeit Mr Reynolds accepted the Council were not approving a building. The intent of the Council’s conditions was to ensure that competition entrants address the requirements of the DCP. Mr Staunton advised the applicant would accept a condition that directs attention to the relevant DCP provisions rather than requiring compliance with specific DCP controls.

62. The experts agreed that an appropriate condition referencing the requirements of s 4.2.4 of the DCP was required. A deferred commencement condition was subsequently agreed requiring changes to the plans to delete the indicative ‘indents’ to the McEvoy Street façade. The Council also sought to delete reference to the two vertical articulations. However, the applicant sought designation on the plans and elevations of the dimensioned width and depth of these articulations.

63. A further operational condition was agreed requiring the future detailed design of buildings to McEvoy Street including at least two distinct building components, each with its own architectural character, having regard to s4.2.4 of the DCP. However, the applicant opposed the Council’s proposed wording of this condition to also include that the two building components be separated by two full height breaks.

Depth of the McEvoy Street building envelope

64. In addition to the length of the façade, the Council raised a concern with the proposed depth of the building envelope relative to the requirements of the ADG in particular that site constraints may require varied building depths to achieve good levels of residential amenity for residents and neighbours. Varying the depth having regard to building orientation should be considered to maximise solar access and natural cross ventilation to apartments.

65. The design experts agreed that the reference designs were not required to be approved as part of the application but sit behind it to demonstrate a possible outcome to test the proposed envelopes. In this regard it would be possible to support the McEvoy Street envelope depth in the knowledge that a detailed design process would require ADG compliance. It was also agreed that an acceptable building configuration would most likely result in a shallower building depth in order to achieve natural cross ventilation minimums and reduce the number of apartments without solar access.

66. It was therefore agreed that the McEvoy Street envelope was generous enough that development would be capable of occurring within it although it was also agreed that detailed development applications had a habit of ‘filling out’ concept design envelopes with an expectation that they are going to achieve the same yield as in the reference designs.

67. In terms of solar access, the Council was concerned that the reference designs indicated that 18% of apartments would have no solar access in mid-winter, arguing this was a consequence of the length of the building facing south-east.

68. The Council referenced Objective 4J-1 of the ADG whereby, in noisy and hostile environments (i.e. busy roads), the impacts of external noise and pollution should be minimised through the careful siting and layout of buildings. In particular the ADG’s design guidance that, where solar access is away from the noise source, non-habitable rooms could provide a buffer. In this regard, it was argued that the McEvoy Street building envelopes were too deep for the McEvoy Street conditions.

69. The applicant’s experts were critical of the Council requiring the McEvoy Street building to be designed as single sided, with all apartments having a northerly aspect as this would result in floor space inefficiencies. Instead, the reference designs proposed double-loaded corridors with all apartments affected by noise and pollution from McEvoy Street traffic provided with winter gardens and mechanical ventilation in a sustainable form.

70. The Council was not prepared to support this design outcome as part of a concept approval through a condition as the applicant sought. Whilst Mr Pickles indicated that the Council acknowledged that there may be double-loaded corridors, the Council did not want to be seen to be encouraging this as a desired outcome by accepting this outcome through a consent condition.

71. Mr Darroch responded that the design was due to the site constraints however, in detailed design, the numeric could be met if some apartments were converted to larger apartments or the internal layouts were changed. He also argued that the majority of apartments in the reference sketches had very good solar access well beyond the minimum requirements.

72. Ultimately, subject to imposition of an agreed solar access condition requiring that a maximum of 15% of apartments have no solar access, the Council no longer pressed solar access as a concern.

73. The Council’s other concern with the envelope depth was the ability to provide natural cross ventilation having regard to the ADG objectives and provisions at Part 4B. There was dispute between the parties as to how many apartments could comply with the minimum 60% required by the ADG.

74. The applicant argued that the ADG recognised, at Part 4J, that, achieving ADG design criteria may not be possible in some situations due to noise and pollution. Where developments are consequently not able to achieve the criteria, alternatives could be considered in terms of solar and daylight access, private open space and balconies, and natural cross ventilation. Whilst accepting that the private open space could be ‘compromised’ with the proposed winter gardens, the Council argued that not all three matters should be compromised by alternatives. The Council maintained that a number of apartments in the McEvoy Street building envelope would not achieve natural cross ventilation as defined in the ADG primarily due to the building depth.

75. Mr Staunton submitted that the experts had agreed that competent architects could undertake detailed designs to meet ADG objectives for solar access and cross ventilation, having regard to the depth of the McEvoy Street envelope, and that this was not a matter that should be required to be addressed at concept application stage, given the extent of the envelope. Further, the ADG was a guide as to how to design to meet the requirements of SEPP65, but compliance with its provisions was not mandated.

76. Options for increasing the number of apartments that could be naturally cross ventilated to the 60% sought by the ADG were discussed between the experts. This included increasing the size of apartments in terms of the number of bedrooms as well as changes to some internal layouts.

77. The applicants’ experts argued that this level of detailed design was not required at concept application stage. Mr Staunton also submitted that occupants had the choice to open windows however, if this was considered too noisy, the apartments would be mechanically ventilated. This was a reasonable response to RFB developments on busy roads.

78. The applicant sought a condition that the detailed design of apartments with openings to McEvoy Street could include innovative mechanical ventilation solutions. This was opposed by the Council as it suggested that ventilation that is not natural is acceptable when it is not.

79. It was subsequently agreed between the parties that a condition be imposed requiring that at least 60% of apartments be naturally cross ventilated. The applicant opposed however, a reference in the condition to this requirement being in accordance with the ADG.

Remaining conditions in dispute

80. The parties agreed on conditions requiring the provision by the applicant of an accurate scale model of the development for inclusion in the Council’s City Model displayed in Town Hall House. Also, that electronic files of the model be submitted to the Council showing the building envelopes.

81. However the Council sought these conditions as deferred commencement conditions (DCCs) to be met prior to the consent operating whereas the applicant argued they could be incorporated into the operational consent as it would inform the detailed design process.

82. The design experts agreed that a model of the proposed development should be prepared and submitted for assessment in accordance with cl 2(5)(i) of Part 1 of Schedule 1 of the Environmental Planning and Assessment Regulation 2000 (the Regulations). The sub-clause requires submission of a model with the development application, if appropriate.

83. Conditions specifying the proposed height of the building envelopes, including any 10% bonus applicable under the LEP, were agreed although the applicant objected to a requirement sought by the Council to screen the top of rooftop plant and the overrun (although agreeing to side screening).

84. The Council also sought to delete the height exceedence zone notation on the Lawrence Street envelope limiting this area to the lift overrun, skylight and plant, and to limit the height of this envelope to RL23.12. The applicant sought to retain the height exceedence information and not to specify a height limit RL.

85. The applicant opposed a condition referencing the requirement for new large trees to achieve a minimum of 15% tree canopy cover across the site within 10 years of completion of the development on the basis that it was not clear what the condition meant. This requirement was not raised as a contention and was not the subject of any evidence as to why it was required in this instance, and it was a specific numeric applied to a concept application rather than at detailed design stage.

86. However, Mr Pickles submitted it was derived from the Urban Ecology s 3.5 of the DCP’s general provisions and specifically is required by s 3.5.2.2. This provision applies to all areas in the City of Sydney other than Central Sydney.

87. Mr Staunton accepted that future development applications for the site had to comply with SEPP65 and the ADG, and have regard to the provisions of the DCP but submitted all of these provisions should not be conditions of consent at concept application stage. The parties agreed to a condition which advised that the detailed design of buildings had to have regard to a number of listed DCP provisions and desired design outcomes, but disagreed as to whether the condition should reference specific design features such as full height breaks (sought by the Council) or the ability to have double-loaded corridors (sought by the applicant) to the McEvoy Street elevation.

Issues raised by objectors

88. The design experts dealt with issues raised in public submissions in the Joint Report (Exhibit E). They agreed that the amended application addressed these issues in terms of adequacy of the information supplied, (including solar access diagrams), consideration of ESD requirements, and the acceptability of the proposed height to McEvoy Street and the envelopes generally.

89. Deep soil landscaping was also compliant and the loss of trees on the site would be addressed by consent conditions requiring protection of existing street trees and detailed landscape and arborist information as part of future development applications.

90. View loss would only arise from the McEvoy Street development and this envelope was LEP and DCP height compliant therefore no view loss assessment was required for the concept application.

91. The design experts also agreed that a number of issues raised would need to be addressed at the detailed design application stage given no physical works are proposed as part of the concept application. This includes excavation and construction impacts, traffic, parking and infrastructure impacts, and further geotechnical, contamination and remediation, and acoustic assessment. Conditions of consent on the concept application require these issues to be addressed at that time.

92. The parties also agreed that any retention of the warehouse wall currently forming a backdrop to the courtyards of adjoining development will need to also be considered at that time as will the treatment of any side walls, blank or otherwise.

93. It was further agreed that the amenity impacts to neighbours associated with setbacks and separation had been addressed by the amended envelopes, however, the detailed design would need to ensure amenity is retained.

94. Following lodgement of the Joint Expert Report, and as a consequence of modifications subsequently undertaken to the application prior to the hearing or as a consequence of oral evidence at the hearing, the experts also agreed that the remaining issues raised by objectors had been addressed. These included the proposed height to Lawrence Street, the compatibility of the form and scale of development with Lawrence Street, surrounding streetscapes, the locality and the HCA, and the separation to the Petbarn building and to 118-136 Lawrence Street. The height to McEvoy Street was fully compliant and there were only minor non-compliances with the Lawrence Street height as a result of the natural fall of the land which the experts agreed would be acceptable.

95. Accordingly, it was agreed by the parties that the public interest contention had been addressed, to the extent reasonable in a concept application, in the amended application.

Findings

96. The Council’s concerns with this application were largely addressed in modifications undertaken to the application in response to the advice of the parties’ experts. Ultimately, the only remaining concerns were the length and depth of the McEvoy Street building envelope, and the likely resultant building form outcome, and the impacts this would have on the streetscape and on the amenity of future occupants, particularly in terms of solar access and natural cross ventilation.

97. There was also disagreement about a number of proposed conditions.

98. The applicant submitted that the Council’s concerns were focused on detailed design considerations associated with aspects of the reference designs which were not required to be considered at the concept application stage. However, the Council wanted to ensure that any approval to the concept application, which included designated building envelopes and reference designs, would not lead to unacceptable development outcomes and issues arising in the detailed design application stage(s).

96. On the basis of the modifications to the application undertaken, and having regard to the experts’ advice on how objectors’ issues had been, or could be, addressed, I consider that approval to the concept development application should be granted subject to appropriate conditions. Such conditions should give guidance to the detailed design, and any competitive design process that precedes it, without imposing requirements which unreasonably dictate the detailed design outcomes.

97. The design experts agreed that the building envelopes, as amended, were capable of delivering a compliant detailed design but the reference designs submitted did not fully demonstrate this. I accept however, that these reference designs are indicative only and consent is not sought for them. The intent of a staged application is that the consent sets the parameters for the detailed design required to achieve development having regard to the requirements of the ADG and DCP and the amenity impact for neighbours and future occupants.

98. As the parties had agreed that the proposed envelopes were generally acceptable, the remaining issue was the conditions which should be imposed on the consent as to how far they dealt with detailed design matters.

99. On the one hand, the applicant sought to impose specific design concessions or rights in the conditions, such as the ability to have double-loaded corridors in the McEvoy Street development, but on the other argued that, as the DCP and ADG provisions should be flexibly applied, these provisions should not be consent conditions which would fetter the designs in future applications, such as requiring the same development to have full breaks in the façade.

100. Section 4.22 of the EPA Act states that concept development applications set out concept proposals for the development of a site with detailed proposals for the site, or part thereof, to be the subject of subsequent development application(s). Consent to a concept development application does not authorise the carrying out of any development that is not the subject of detailed design in a further application. Furthermore, the Court is only required to consider the likely impact of the development the subject of the concept proposals not the likely impact of the carrying out of development that may be the subject of subsequent development applications.

101. In this regard, I have considered the competing positions of the parties on the conditions in dispute on the basis that consent is not sought for detailed design at this stage which instead will be the subject of future application(s). I have also had regard to neighbour objections on the same basis.

102. I will deal with the conditions in dispute in the order in which they are sought to be imposed, commencing with three DCCs.

103. Firstly, there is a DCC requirement that the applicant submit a model of the building envelopes for inclusion in the City Model. This is a requirement of lodging certain applications with the City of Sydney and the Council’s application form makes it clear that an application cannot be lodged without a model where changes to a development envelope are proposed.

104. I accept that the model would not make any material difference to the development whether it is prepared prior to, or as part of, the operational consent. However, given the parties agreed that a model is required, and the experts advised it should be prepared in accordance with the Regulations (which requires a model to be submitted with the application), as a model has not been submitted, there is no basis for not requiring one prior to the consent being operational. The requirement remains a DCC accordingly. This includes the associated condition requiring CAD files of the model to be submitted (DCCs 1 and 1A).

105. The other disputed DCC (1B) requires amendments to the building envelopes. In dispute was the wording of the condition and the Council’s requirement to delete the reference to the vertical articulations to the McEvoy Street façade from the plans. The Council also sought that the plans show the deletion of the lift overrun, skylight and plant ‘zone’, and associated note with it, to the Lawrence Street building envelope and the reduction of the height of this envelope to a maximum RL23.12.

106. The applicant opposed the deletion of the zone and sought designation on the plans and elevations of the dimensioned width and depth of the two proposed articulations to McEvoy Street. The height of the Lawrence Street building envelope being limited to RL23.12 was also opposed.

107. As to whether or not there should be any designation of articulation areas on the plans, this is a design detail and implies a design outcome in a specific location. The parties agreed reference to the ‘indent’ should be deleted. I consider that reference to specific locations or requirements for articulation should also be deleted. The appropriate objectives and requirements for both breaks and articulation in the building are contained in the DCP. The detailed design will need to either meet these DCP requirements or propose alternatives that are acceptable to the Council in terms of meeting the required DCP objectives.

108. Furthermore, proposed (operational) condition 5(a), by agreement, requires that buildings to McEvoy Street should be designed with at least two distinct building components, each with its own architectural character, and references s 4.2.4 of the DCP being the relevant section containing the provisions that the detailed design(s) need to address.

109. The applicant opposed the Council’s wording of this condition to also include that the building components be separated by ‘two full height breaks’. I agree that these words should be deleted as such a specific design requirement is unnecessarily restrictive given the agreed wording of the rest of the condition.

110. In terms of a maximum height being stipulated for the Lawrence Street building envelope, the LEP sets the overall height limit for the site which can be increased subject to the design excellence provisions of the LEP or, with justification, in a clause 4.6 request.

111. The plans show a height of RL24.42 for the fourth level for the Lawrence Street envelope, which is above the height limit, but only for a zone to accommodate a lift overrun, skylight and plant. A note on the plans states the zone is for these uses, with their actual location not designated, is not to be filled out, and is not to contain GFA. The Lawrence Street elevation shows the height of the roof at RL23.12 indicating only elements on the roof would occur over this RL. I also note that an agreed operational condition (6A) enables lift overruns and the like on the rooftop up to RL24.42 so the DCC changes sought by the Council would appear contrary to this.

112. Therefore, in terms of specifying an RL height limit for the Lawrence Street envelope as sought by the Council, I agree with the applicant that this should be deleted.

113. I also agree however, with restricting the uses that may otherwise exceed the height limit at the concept approval stage to those proposed by the applicant, being for the lift overrun, plant and skylight but without designating their specific location.

114. In summary, I therefore consider it appropriate to remove reference to a maximum RL height limit for the Lawrence Street envelope in the DCC but to retain the height exceedence zone note and the reference design RLs on the plans. This will provide some flexibility for height breaches having regard to the topography of the site but limit those breaches to non-floor space. It will also provide some certainty for neighbours as to the extent of the height of both developments. A reworded DCC 1B is included accordingly.

115. I also agree that it is unreasonable and unnecessary, to screen the top, as distinct from all sides, of rooftop elements, and have deleted this requirement from Condition 6A accordingly, as the applicant sought.

116. The applicant agreed to a condition requiring that a maximum of 15% of apartments have no solar access but sought additional wording in the condition being that the future detailed design of the building fronting McEvoy Street could have double-loaded corridors. I consider this too specific in terms of design outcomes and accept the Council’s concern that it implies double- loaded corridors are acceptable, which may not be the case once detailed designs are prepared. Omitting reference to double-loaded corridors does not preclude their inclusion in such designs if a future applicant can demonstrate they are appropriate. Condition 5(i) is imposed as proposed by the Council accordingly.

117. Similarly, in terms of cross ventilation, the parties agreed on a condition that at least 60% of the apartments are to be naturally cross ventilated. However, I agree with the applicant that the condition does not need to reference the ventilation being in accordance with the ADG, as sought by the Council, as that requirement is common for all aspects of the future detailed design(s). Condition 5(j) as sought by the applicant is imposed accordingly.

118. Proposed condition 9 deals with detailed design considerations and lists specific requirements that any subsequent competitive design process and detailed design development application must have regard to. Minor modifications to Condition 9(c) proposed by the applicant are supported on the basis they provide clarity on the relevant communal open space provision.

119. In the same condition, the applicant opposed the inclusion of specific DCP requirements for 5% of all dwellings to be terrace houses or maisonettes and 15% to be adaptable, on the basis that the reference designs did not propose this but their omission was not a contention raised by the Council and/or their design experts did not seek this design outcome. The experts and evidence therefore did not address this specific provision.

120. The applicant also opposed reference to the DCP requirement for the first level of the McEvoy Street development to be non-residential for similar reasons.

121. I agree with the applicant that, as these specific provisions were not proposed to be met in the concept application nor shown in the reference designs and were not contentions or concerns argued by the Council in the proceedings, a condition that suggests the detailed design(s) need to comply with these specific design requirements is not appropriate. For this reason, reference to these specific requirements has been deleted from condition 9.

122. For the same reason, I have deleted the specific requirement in condition 12(b) for future development to provide large trees to achieve a minimum 15% tree canopy cover across the site. This is not proposed in the application nor demonstrated to be able to be achieved nor was it contended by the Council to be a necessary or appropriate outcome. Therefore, the requirement was not the subject of any expert evidence. The parties did, however, agree with a condition that at least 10.5% of the site area should be deep soil landscaping. This would facilitate large trees and canopy cover.

123. Notwithstanding deletion of these specific requirements, and as accepted by the applicant, future applications will still need to address all DCP provisions that apply to the site and to future development of the approved building envelopes on it, not simply be confined to those referenced specifically by the conditions of consent to the concept development application.

Orders

127. The orders of the Court are:

1. The clause 4.6 request to exceed the height standard for the Lawrence Street building envelope is upheld.

2. The appeal is upheld.

3. Concept development application D/2017/238 for a mixed use development and a residential flat building at 163-173 McEvoy Street, Alexandria is approved subject to the conditions in Annexure “A”.

4. The exhibits are returned, except Exhibits 1, A, B, K and N.

………………………………

Jenny Smithson

Commissioner of the Court

Annexure A (73.6 KB, pdf)

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Decision last updated: 27 August 2018