Ray Fitz-Gibbon and Associates Pty Ltd v The Council of the City of Sydney

[2016] NSWLEC 1651

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ray Fitz-Gibbon & Associates Pty Ltd v The Council of the City of Sydney [2016] NSWLEC 1651
Hearing dates:	20 July 2016
Date of orders:	20 July 2016
Decision date:	20 July 2016
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See orders par 16
Catchwords:	DEVELOPMENT APPLICATION: Consent Orders - no issues raised by council – resident objections on whether height exceeded height standard
Legislation Cited:	Environmental Planning and Assessment Act 1979 Sydney Local Environmental Plan 2012
Cases Cited:	Bettar v Council of the City of Sydney (2014) NSW LEC 1070, Stamford Property Services Pty Ltd v City of Sydney & Anor (2015) NSW LEC 1189, Tenacity Consulting v Warringah (2004) NSW LEC 140.
Texts Cited:	Practice Note - Class 1 Development Appeals
Category:	Principal judgment
Parties:	Ray Fitz-Gibbon & Associates Pty Ltd (Applicant) The Council of the City of Sydney.(Respondent)
Representation:	Counsel: Mr I Hemmings SC (Applicant) Dr S Berveling, barrister.(Respondent)   Solicitors: EJ Fleming Legal (Applicant) The Council of the City of Sydney.(Respondent)
File Number(s):	2016/149737

Judgment

1. COMMISSIONER: This appeal is against the City of Sydney Council's refusal of Development Application number D/2014/1315 for the demolition of existing warehouses and construction of a mixed use development at 4 to 8 Bridge Road, Glebe.

The site

2. The site is identified as Lot 1 in DP1115599, Lot 1 in DP550372, Lot 10 in Sec C DP925273, and Lot 11 Sec DP925273. It is rectangular in shape with an area of 1587 sq m. It is located on the southern side of Bridge Road and has a primary street frontage with three existing vehicle crossovers to Bridge Road. It has a secondary street frontage with a single existing vehicle crossover to Darghan Street and a further street frontage with a single existing vehicle crossover to Bridge Lane.

3. A single storey brick warehouse is contained within the site at 4 Bridge Road. A two-storey brick warehouse is contained with the allotment at 6 Bridge Road, and a two-storey cement rendered brick warehouse and office building is located within the allotment at 8 Bridge Road. Directly north of the site on the opposite side of Bridge Road is the Blackwattle Campus of Sydney Secondary College and the recently completed first extension of the Glebe Foreshore Walk.

4. The site is not a heritage item but immediately adjacent to the east is the local heritage item, the Kauri Foreshore Hotel. The site is in close proximity to the Lyndhurst Conservation Area C31 (the HCA).

5. The council have filed a statement of facts and contentions that identify the following areas of dispute:

1. excessive height and massing;

2. adverse heritage impacts;

3. poor internal amenity;

4. unacceptable flood risks;

5. inadequate car-parking arrangements;

6. adverse impact on street trees;

7. inadequate waste facilities;

8. poor safety and security; and

9. poor design.

6. Prior to the matter being finalised the parties held further discussions and further plans and information was provided to the council. The further plans and information addressed those matters previously identified as being in dispute. The council now seeks to enter into Consent Orders with the applicant.

7. In this regard the Court's Practice Note Class 1 Development Appeals (the Practice Note) relevantly provides at [46] the following,:

46. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account.

Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(I) the content of the proposed orders (including the proposed conditions of consent);

(ii) the date of the hearing by the Court to consider making the proposed consent orders; and

(iii) the opportunity for any such person to be heard,

or that, in the circumstances of the case, notification is not necessary.

8. In summary, the Practice Note requires:

• evidence to show that approval is lawful and appropriate including whether any statutory provisions have been complied with;

• whether any objection has properly been taken into account; and

• whether reasonable notice has been given to all persons who objected to the proposal, the date of the hearing and the opportunity to be heard at the hearing.

9. In response to the Practice Note, the parties filed joint reports in relation to:

1. the planning issues from Mr Boston, Mr Woolskin, and Mr Nash;

2. the heritage issues from Mr Stasis and Ms Hill;

3. the flooding issues from Dr Martens and Mr Garland, and

4. the traffic and parking issues from Mr Rogers and Mr Bryant.

10. All experts stated that there was no reason why the Consent Orders should not be made.

Resident response to Consent Orders

11. In response to the opportunity for objectors to be heard in the consideration of the consent orders, two residents provide evidence to the Court. Their principal concern related to the height of the building and specifically how it is to be measured. The residents provided a report from a town planning consultant that concluded that a strict interpretation of the measurement of height in Sydney Local Environmental Plan 2012 (LEP 2012) would find that the proposed development exceeded the maximum height permissible and that the development would be prohibited without a written request provided under cl 4.6 of LEP 2012 to support the variation to the development standard.

The height issue

12. Mr Boston and Mr Nash addressed the planning issues and also provided a response to issues raised by local residents. This particular matter of compliance with the height standard was addressed in the joint report of Mr Boston and Mr Nash where the report states at [2.2] and [2.3]:

2.2 As detailed in the original expert planning report filed in these proceedings the experts agreed that the development as amended complies with the 15 metre height of buildings development standard applying to the subject site. Further, having regard to the view loss assessment undertaken in accordance with the planning principle established by the Land and Environment Court in the matter of Tenacity Consulting v Warringah (2004) NSW LEC 140 the experts agreed that resultant view loss impacts were acceptable.

2.3 Such opinions were based on the reasonable interpretation of ground level existing as established by the Land and Environment Court in the matters of Bettar v Council of the City of Sydney (2014) NSW LEC 1070, which was followed in the recent decision of Stamford Property Services Pty Ltd v City of Sydney & Anor (2015) NSW LEC 1189.

13. Mr Boston and Mr Nash further state at [2.11] to [2.13]

2.11 The experts agree that the height plane should be projected across the entire site and should not be limited to the existing or proposed building footprint or setbacks. In this regard the experts do not agree with the interpretation of ground level existing as it relates to the application of the height of building standard as contained in the submission of June 2016 prepared by Ingham Planning Pty Ltd. Such submission relies on ground level existing being taken from the excavated level of the site as measured from the proposed Bridge Lane building setback alignment.

2.12 The experts agree that ground level existing as interpolated across the entire site for the purpose of determining and assessing building height and as reflected in plan LE27C places the proposed building in its context rather than relying on the present built form of any existing development on the site and enables the reasonable and practical determination and assessment of building height for development on this site.

2.13 The experts continue to agree that the proposal as amended complies with the 15 metre height building standard at cl 4.3 of SLEP 2012. Further, having regard to a view loss assessment undertaken in accordance with the planning principle established by the Land and Environment Court in Tenacity the experts continue to agree that resultant view loss impacts are acceptable."

14. The approach adopted by Mr Boston and Mr Nash in Bettar and Stamford was accepted by the council and the applicant as a reasonable and practical approach to address the issue of height and how it should be measured. Mr Hemmings SC for the applicant explained in some details why this approach provides a fully reasoned explanation given the difficulty in the definitions in LEP 2012 required to determine height.

15. I accept the approach adopted by the experts as set out in Bettar and Stamford is the correct one. However, if I am incorrect and that a written request is required pursuant to cl 4.6 of LEP 2012; an amended written request was provided and Mr Boston and Mr Nash agreed that the variation to the height requirement in cl 4.3 could be varied in the circumstances of this case. I have reviewed the written request and concur with their conclusions.

16. There being no reason to refuse the consent orders, I make the following orders:

1. 1. The Applicant is granted leave to rely on the amended drawings identified in condition (1)(a) “Approved Development” of “Annexure A” attached to these Orders.

2. 2. Pursuant to s97B of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the Respondent’s costs as assessed or as agreed.

3. 3. The appeal is upheld.

4. 4. Deferred Commencement Development consent is granted to Development Application No.D/2014/1315 (as amended) for the demolition of the existing warehouses and construction of a part 4 and part 5 storey mixed use development containing retail on the ground floor and 36 residential apartments over basement parking at 4-8 Bridge Road, Glebe, subject to conditions specified in Annexure A to these Orders.

5. 5. The exhibits are returned with the exception of exhibits 1, 9, A and B.   

___________

G Brown

Commissioner of the Court

149737.16 (C) (482 KB, pdf)

Decision last updated: 24 January 2017