S and M Constructions Australia Pty Ltd v City of Sydney Council

[2018] NSWLEC 1619

Land and Environment Court

New South Wales

Medium Neutral Citation:	S & M Constructions Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 1619
Hearing dates:	4 October 2018
Date of orders:	04 December 2018
Decision date:	04 December 2018
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders that: (1) Leave is granted to rely on amended plans referenced in Annexure “A”. (2) The appeal is upheld. (3) Development Application D/2017/1251 for the demolition of an existing terrace building at 45 Cooper Street, Surry Hills, and construction of a seven-storey mixed use building with ground floor retail and three apartments above, is approved subject to the conditions set out in Annexure “A”. (4) The exhibits are returned with the exception of Exhibits 1, 3, 4, 5, A, B, D, E, G.
Catchwords:	DEVELOPMENT APPLICATION: consent orders – neighbour objections – multi-storey mixed use development – impact on neighbouring properties – site vulnerability to impact – solar access – visual privacy – loss of outlook
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Sydney Local Environmental Plan 2012
Cases Cited:	Davies v Penrith City Council [2013] NSWLEC 1141 New Century Development Pty limited v Baulkham Hills Shire Council [2003] NSWLEC 154 Pafburn v North Sydney Council [2005] NSWLEC 444 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Zhang v Canterbury City Council [2001] NSWCA 167
Texts Cited:	Practice Note - Class 1 Development Appeals Sydney Development Control Plan 2012
Category:	Principal judgment
Parties:	S & M Constructions Australia Pty Ltd (Applicant) City of Sydney Council (Respondent)
Representation:	Counsel: A Galasso SC (Applicant) S Nash (Respondent)   Solicitors: Beswick Lynch (Applicant) City of Sydney Council (Respondent)
File Number(s):	2017/356500
Publication restriction:	No

Judgment

Introduction

1. This Class 1 appeal, brought by S & M Constructions Australia Pty Ltd under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), concerns the deemed refusal by City of Sydney Council (Council) of a development application (D/2017/1251), comprising the demolition of an existing terrace building and construction of a seven-storey mixed use building with ground floor retail and three apartments above. Modifications to the proposal were undertaken in response to contentions raised by the Council to the point that consent orders were proposed by the parties in relation to this appeal prior to the commencement of the hearing.

2. A partial chronology of events was provided by Council and is now summarised. The appeal was filed with the Court on 24 November 2017. Council filed its original Statement of Facts and Contentions on 20 December 2017. Subsequent to a conciliation conference, the applicant sought and was granted leave by the Court to rely on amended plans on 20 June 2018 (Exhibit A). There was a further (Amended) Statement of Facts and Contentions prepared by Council dated 5 July 2018 (ASOFC, Exhibit 3). Further amendments to the plans were prepared in consideration of the ASOFC which were considered in joint expert conferencing. A Joint Expert Report (Exhibit 4), dated 12 September 2018, was then prepared by the appointed experts (in town planning, architecture and urban design). On 28 September 2018, the parties agreed to apply for consent orders which would uphold the appeal and grant consent to the application, based on further amended plans and conditions.

3. The Court's Practice Note - Class 1 Development Appeals provides guidance in regard to agreed consent orders at [99]:

“ 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.”

The site and locality

4. I generally rely on Exhibit 3 for the following descriptive material. The site includes two lots being Lot 5 in DP441196 and Lot 1 in DP811986. The site is generally rectangular in shape, but includes a long handle section to the rear and has a total site area of 178m². The combined lots are known as 45 Cooper Street, Surry Hills (site).

5. The site is on the southern side of Cooper Street, located mid-block between Holt and Hart Streets. The site accommodates a two-storey Victorian terraced dwelling house including a gateway and “cart way” with original flagstones. The cart way accesses the rear of the house and provides informal secondary egress for 47-53 Cooper Street. The site is not a heritage item and is not located within a conservation area.

6. Adjoining the site to the east at 47-53 Cooper Street is a 10-storey mixed use building, with ground floor retail and residential apartments above. The building is an adaptive reuse of a commercial building and includes windows and balconies (serving bedrooms between levels 1 and 8) adjoining the common boundary with the site.

7. Two mixed use buildings located at 32-40 and 42-44 Holt Street, with residential apartments above ground floor retail, adjoin the subject site at the rear. The apartments have bedroom windows overlooking the site.

8. The site adjoins four Victorian terraces to the west. The row adjoins a two-storey heritage listed building at the corner of Cooper and Holt Streets.

Planning controls

9. The site is located within the B4 – Mixed Use zone in Sydney Local Environmental Plan 2012 (LEP). The development is defined as a ‘mixed use development’ and is permissible in the zone with development consent. The proposal complies with the height and floor space ratio (FSR) controls in the LEP.

10. Sydney Development Control Plan 2012 (DCP) applies to the site, and is discussed relevantly below.

The hearing

11. The hearing commenced with a site view, where oral submissions were received from a number of objectors. The opportunity was also available to attend the homes of most of those objectors in order to better appreciate the concerns raised.

12. As had been foreshadowed at the site view, the hearing commenced in an unusual manner. With the agreement of the parties, a submission was received from the bar table from Ms R McCulloch, a lawyer who represented a number of objectors. The substance of this submission was that reasonable notice had not been given to the objectors in regard to the amended plans and the content of the proposed consent orders. Council’s notice to objectors (Exhibit 7) was dated 2 October (in the form of a standard letter), whereas the hearing commenced on 4 October 2018. Ms McCulloch’s submission was that significantly more notice was required if objections from residents were to be both properly conceived by objectors and, with their submission, taken into account by the Court.

13. In considering Ms McCulloch’s submission, I took account of the opportunity to hear from a number of objectors during the morning of the hearing, where some steps were taken by the parties to make clear any particulars of the amended proposal which the objectors may have not been familiar with. I also took consideration of the submissions from Mr Galasso which included the submission that proposed amendments were inclined to reduce rather than increase potential impacts.

14. However mindful of the very short notice given and the risk of its incompleteness (mindful of paragraph [99] of the Court’s Practice Note - Class 1 Development Appeals), I made orders requiring further notification to objectors of the proposed consent orders agreed by the parties and the amended plans. The opportunity was provided for further written submissions from objectors to be filed with the Court (the orders provided for an additional period of approximately two weeks). Objections were to be notified to the parties’ experts. I also requested the filing of reports from the experts on any matters arising from their review of any further objector submissions.

15. The rest of the Court hearing was taken up by submissions and evidence on statutory provisions and in the consideration of the objections heard to date.

16. The following experts presented evidence: R Player (planner for the applicant), N Morris (architect for the applicant), D Zabell (planner for the Council), A Cronin (architect/urban design for the Council).

17. Subsequent to the additional period available for objections, a number of documents were filed, which I have also considered. They are referenced as follows:

• A set of emails as submissions from a number of objectors, which included as attachments more detailed analysis and commentary including from qualified specialists (the date of Council’s covering email was 25 October 2018).

• A response on behalf of the applicants, including (1) a letter dated 26 October 2018, signed by R Player and N Morris (the applicant’s experts), and (2) a letter dated 26 October 2018 from Beswick Lynch Lawyers who represented the applicants in this matter, addressing a legal question arising in the objector submissions.

• A submission titled “Respondent’s experts’ comments and additional submissions” (Council experts’ response to further objections), also under Council’s covering email dated 25 October 2015.

Issues

18. The issues centre on the objections raised by local residents. The pertinent objections can be divided into the following categories:

• Impact on amenity

• Access arrangements for adjoining properties

• Loss of local heritage

• Design excellence

• Other concerns.

Amenity

19. The issues which can be considered under this category include: loss of daylight, overshadowing, loss of airflow, loss of views or outlook, privacy, and noise (both during construction and afterwards in regard to the roof top terrace in particular). The sum of the effects, according to the submissions, would be a deterioration in the general amenity and positive experiences in the affected homes and in turn the currently experienced quality of life for residents. The causes of these effects, according to the objections, include the height and bulk of the building and its relationship and proximity to the neighbouring buildings (in particular the implications of the design and offset – or lack thereof - to the western face of 47-53 Cooper Street). I will turn to the particulars of these objections.

Positive Covenant

20. It seems to be not in dispute that a positive covenant affects a limited number of apartments along the western façade of 47-53 Cooper Street (Units 308, 508, 708, 909 – source: Class 1 Application - Exhibit E, Tabs 36 and 37). The covenant’s effect can be gleaned from the excerpt below (Source: Exhibit E Tab 36 – Letter from Beswick Lawyers to the applicant dated 7/9/18).

“… all windows in the building constructed on the Boundary of the Land which have aspect to the (common boundary between the two parcels) will be sealed, bricked up or otherwise enclosed at Council’s direction and to Council’s reasonable satisfaction and at the Registered Proprietor’s cost, prior to the commencement of construction, where and to the extent that the construction is intended to abut, adjoin or be adjacent to the Boundary.”

21. Understandably, objections maintained concerns about the impact of the development, or more precisely the closing up of the existing western window openings, on the amenity enjoyed from these units.

22. It seems quite clear that approval of the subject development on 47-53 Cooper Street, occurred in recognition that the windows to the abovementioned units would need to be closed up if the trigger for that action (as documented in covenant itself) arose. At Council’s direction, and in relation to intended development occurring adjacent (now evidenced with the subject proposal), the trigger would release for the closing up of the windows. These matters would be expected to have been reasonably appreciated by owners as a consequence of the covenants over the title to the property asset so enjoyed.

23. The planning and approvals system is in part concerned with establishing orderly arrangements for the development of land (see for example s 1.3(c) of the EPA Act). What might be described as an “orderly arrangement” was established with the approval of 47-53 Cooper Street. The arrangement had some degree of intricacy to it, but it has allowed a benefit to be enjoyed for a considerable period by occupants of the affected units in 47-53 Cooper Street. However, the second stage of the arrangement now presents itself. It seems to me unreasonable for the Court to act to prevent the following through with the clear intention which has been established in regard to these particular windows. Indeed, the fact of the positive covenant is a matter for which regard can be had under the provisions of s 39(4) of the Land and Environment Court Act 1979 (Court Act). I recognise this will remove the benefit that has been enjoyed by occupants of these affected units from the windows. However it is reasonable to believe that this potential loss should have been clear to those who have been benefitting.

Other units

24. There are a number of other units with windows along the western façade of 47-53 Cooper Street which are affected by the development. A different set of circumstances arise here. I summarise the circumstances below.

25. The most affected of the units in 47-53 Cooper Street are those quite adjacent to the proposed development. While the proposed development would not result in the closing up of openings of other units facing out of the western façade of 47-53 Cooper Street, the proposed building would be constructed almost adjacent and perpendicular to a number of openings in these units. In addition, what might be described as a short northern wing of the proposed development, which does align with openings to 47-53 Cooper Street is offset (only) approximately 3m from these openings. According to the objectors, the effect is entirely unreasonable in terms of loss of daylight, overshadowing (“loss of warmth”), loss of airflow, loss of views or outlook, privacy, and noise (in particular in regard to the roof top terrace, and during construction).

26. Submissions were also received from owners and occupants of 32-40 and 42-44 Holt Street, which is immediately south of the site. A particular concern was in regard to the loss of outlook from windows overlooking the subject site and outwards towards the locality.

27. A number of objectors submitted lucidly, and quite personally, on what were seen as the very material effects that would result from the proposal in regard to amenity, quality of life and personal health. A sense of what was seen to be a potential loss of the “nourishment” enjoyed from windows and balconies (and for example outlook, light and airflow) now, in the otherwise quite dense inner city living occurring around the site, was conveyed. The point that more children were living in these units nowadays was also raised. The argument that the affected rooms were mostly bedrooms was countered by the submission that the use of rooms within homes no longer fits into traditional patterns; with people engaging in much more flexible use of interior space (including bedrooms) in denser settings such as this. Some submissions indicated very long periods of time each day were spent in these bedrooms.

28. In consideration of the issue of solar access, it was argued by objectors and agreed by the parties that the proposal brings a non-compliance in regard to the Council’s DCP (considered below).

29. 47-53 Cooper Street is quite a large block of units and there are also objections from the owners of units further from the actual development interface. While it is not the only issues, there are shadow diagrams which indicate a number of these units would have additional overshadowing as a result of the development.

30. The response of the parties to the appeal (ie the applicant and Council as the respondent) can be summarised in this way:

• The proposal would comply with the relevant objectives and major development standards in the LEP applying to the site (FSR and height).

• The proposal would be for the most part consistent with the DCP (see exception below) including the Surry Hills Central Locality provisions.

• It was acknowledged that the proposal does not satisfy the provisions of Section 4.2.3.1 (3) of the DCP as it casts further shadow in settings where:

“(dwellings) currently receive less than 2 hours direct sunlight to habitable rooms and 50% of private open space between 9am and 3pm on 21 June.”

• According to view from the sun diagrams presented by the applicant’s experts and not contested by Council, bedroom windows to four units within 47-53 Cooper Street and bedroom windows to four units within 42-44 Holt Street were seen to be the central ones affected in this regard (the objectors say the non-compliance as significantly greater, using specialist advice engaged separately).

• The proposed development satisfies Section 4.2.3.1(2) of the DCP as it doesn’t reduce existing solar access to the living room spaces and the principal private open space of any apartments located within neighbouring properties during mid-winter.

• Visual privacy impacts are addressed via the particulars of screening and obscure glazing as outlined in Court. This includes the roof top terrace.

• Viewloss analysis was undertaken (in accordance with the Court’s planning principle relating to view sharing established by Tenacity Consulting v Warringah Council [2004] NSWLEC 140 (Tenacity), which demonstrates no unreasonable effects in these circumstances; there had been a reduction in view affectation since this analysis with the increased rear setback for the proposal.

• The 3m building separation (described in [25], complies with the BCA requirement for fire protection of windows and allows for light and air to the windows. The proposal provides for some 20m (approx.) building separation between 45 Cooper Street and 42-44 Holt Street.

• The key concern in regard to acoustic privacy has been addressed as the rooftop terrace is now for the use of only a single occupancy (ie proposed Unit 3). This is entirely reasonable in this inner city setting, where balconies and terraces are common. In regard to air conditioning noise, I accept the evidence from Council’s experts (included in Council experts’ response to further objections dated 25 October 2018) which provided as follows:

“Except (as) provided for at Part 2 Subdivision 3 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 … the installation of air conditioning units will require development consent. It is unlikely that (locations on the rear of the building and adjacent to neighbour’s windows) would be supported for air conditioning units without the application demonstrating that the units will not have an adverse acoustic impact on neighbouring residents (most likely through an acoustic report).”

31. Both of the parties to the appeal saw the proposal as in alignment with the Surry Hills Central Locality Statement. Reference was made to the following provision in this statement (DCP, p2.11-10):

“The future built form character is to maintain the transition in scale and use, from large footprint warehouse buildings in the west to small lot retail, shop top and terrace houses in the east.”

and:

“Maintain the transition in built form scale, from taller buildings in the west, to consistent two storeys in the east.”

32. The objectors saw the proposal as inconsistent with the DCP Locality Statement provisions. Among other things, the existing terrace, set at the edge of a set of two-storey terrace forms, was seen as a contributory building in heritage terms; with the proposal not adequately responding to this current positive streetscape characteristic.

Finding

33. This question of amenity (or quality of life) impact is the major issue for this application. A number of authorities have been useful in coming to a position on this question.

34. First I turn to the Court’s planning principle on assessing impact on neighbouring properties (Pafburn v North Sydney Council [2005] NSWLEC 444 (Pafburn) and Davies v Penrith City Council [2013] NSWLEC 1141), which posits five questions for examination. These questions are considered below (as underlined).

35. How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained?: While there is not entire agreement, there is, in my view, a reasonable understanding of the empirics of the impacts in regard to sunlight, view or outlook loss and privacy as a consequence of the analysis undertaken by the parties as well as the objectors (including solar analysis by qualified architects on their behalf). Having a mind to Lloyd J in New Century Development Pty limited v Baulkham Hills Shire Council [2003] NSWLEC 154 Lloyd J at [61] – [62], I accept the evidence in the affidavit of R Player the applicant’s planning expert, sworn on 8 June 2018, on the changes to solar access to 47-53 Cooper Street and 42-44 Holt Street (Exhibit G, Tab 4), uncontested by Council’s experts in regard to the metrics.

36. At 47-53 Cooper Street, it is clear that the impacts on solar access to the bedrooms closest to the development would be severe. Units 309 and 509 would lose solar access to three bedroom windows entirely at the winter solstice (at present two bedroom windows on each enjoy 3.25 hours of sun). Unit 709 (at a higher level) would lose its full 3.25 hours of solar access to one bedroom. There would be some 0.5 hours loss of sun to Unit 310 again at the solstice. At 42-44 Holt Street, the losses are 1.25 hours (leaving only 0.5 hours were the proposal to proceed) for two bedroom windows at the affected unit on Level 2; with the losses a little less (at 0.5 hours at winter solstice) for two bedroom windows at the affected unit on Level 3.

37. In regard to view and outlook loss, I note and accept the Tenacity-based analysis contained in the Class 1 Application (Exhibit E), and the finding of “moderate” impact. I note that view loss which was the subject of this analysis has been reduced for some with the amended plans (with the somewhat reduction of the western wing of the proposed building which only occurred subsequent to the view analysis), and Mr Player’s comment in Court suggesting the initial Tenacity analysis overstated the view loss.

38. Mindful of both Pafburn and Tenacity, the experts have given considerable weight to the fact that the impacts are for the most part on bedrooms rather than living rooms. I give acknowledgment to the submission from objectors that in these inner city settings, bedrooms can provide a valuable haven for natural light, winter warmth and perhaps outlook, which may be differentiated from lower density settings.

39. How reasonable is the proposal causing the impact?: The proposal’s comfortable compliance with LEP standards in regard to height and FSR, and its considerable rear setback, are strong points supporting the view that it is a reasonable development. This is strengthened by the manner in which the particulars of contentious issue have been responded to with detailing (such as in regard to visual privacy) in the amendments to the proposal.

40. How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact?: The units subject to the positive covenant are highly vulnerable. But the other affected units are also seen as vulnerable given their relationship to the subject site, and the fact of the FSR and height controls and associated development potential applying to 45 Cooper Street. Such vulnerability can at times be offset; either by design or happenstance. In regard to the units containing the most affected bedroom windows, “design” (of these potentially affected units themselves) does offset the vulnerability of the units, as a whole, through positioning of living areas within these units away from the common boundary. In some instances, there may be other constraints applying to new development which has the coincidental effect of reducing the vulnerability of the property receiving the impact. For example, in different circumstances, requirements for heritage conservation may have reduced development potential on the subject site and the impact vulnerability of even the potentially affected bedroom windows at 47-53 Cooper Street and 42-44 Holt Street. However, as considered elsewhere, given the site is not a listed heritage item, nor within a heritage conservation area, there is no reasonable requirement to impose such restrictions in this instance. This leaves the bedroom windows in positions of considerable vulnerability, notwithstanding the use levels that have been occurring within these rooms by individual residents.

41. Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours?: The LEP provisions in regard to design excellence are considered below, but in the broad, I accept the view of the experts that the design has taken reasonable steps to manage and mitigate impacts, given the site setting and applicable planning controls.

42. Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal?: The proposal’s compliance with the height and FSR controls is an important factor in this evaluation. The proposal’s non-compliance with one of the DCP provisions in regard to sunlight (to bedrooms) is accepted by the experts. Section 4.15(3A) of the EPA Act directs me to be flexible in instances of DCP non-compliance. In addition to this provision I have had regard, in particular, to two authorities on the application of DCPs, namely, Zhang v Canterbury City Council [2001] NSWCA 167 (Zhang) and Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 (Stockland). Zhang requires a “proper genuine and realistic consideration of the DCP” (at [62]), and suggests it as “focal point” for deliberation on the DA (at [77]). But I also note Zhang’s emphasis on how DCPs must be distinguished from LEPs. That is to say that while LEPs are “determinative” and a contravention (in principle) must require refusal, DCPs are discretionary instruments, which need to be taken into account, but among other matters (at [74]-[75]).

43. I turn to the findings of the former Chief Judge in Stockland. While here he was concerned with adopted “urban design controls”, McClellan CJ found:

“Unless cogent reasons suggest otherwise, a council is also entitled to expect the Court to require development to conform to the adopted parameters.”

44. “Cogent reasons” to suggest something other than a requirement for strict compliance with the DCP s 4.2.3.1(3) are available here in the Council’s expert evidence itself. The hub of the evidence is that the proposal generally aligns with the character intentions for the locality, with the LEP’s FSR and height controls a significant statutory manifestation of these intentions. The proposal’s FSR of 2.55:1 is well within the applicable 3:1 control, and the building height of 25m is considerably within the 27m applicable control. Beyond this, the evidence is that there have been adequate arrangements in the design particulars (eg visual privacy provisioning, the reduced size of the western wing) to reasonably mitigate against the, no doubt, significant impacts to the most affected units.

45. In the context of this zoning and these controls which typify inner city denser living, the amenity enjoyed from the bedroom openings built adjacent to the boundary at the western façade of 47-53 Cooper Street (suggested as “borrowed”) can reasonably be considered as particularly vulnerable. While the windows at 42-44 Holt Street might be thought of as less vulnerable, the impacts are also somewhat less.

46. I accept the evidence of the experts that the amended scheme provides an acceptable response in regard to solar access, visual and acoustic privacy and views and outlook from the affected properties. I also accept that there will be opportunity for natural airflow, albeit noting that some breezes will be reduced considerably by the proposed building’s reduction of the current open outlook to the street. In regard to the question of health effects, understandably the experts did not profess an expertise. I acknowledge the submissions from neighbours on this point. Indeed inner city living can provide more than its fair share of stresses. However, there is inadequate evidence to suggest to me that future public health impacts provides a reasonable argument to deny a proposal which is generally compliant with established planning controls. Here I again reference New Century Development and Lloyd J’s commentary at [61] – [62].

47. I acknowledge the concerns raised in regard to construction-stage noise, but again note that City of Sydney Council, in particular, has considerable experience in managing this balancing of reasonable construction rights while addressing construction stage amenity concerns of neighbours. I accept the evidence that conditions appropriately address this issue.

Effect on access arrangements for adjoining properties

48. There were two concerns raised regarding the implications of the development on access provisioning for adjoining property: (1) access for repairs and maintenance for 42-44 and 32-40 Holt Street, and (2) fire egress for 47-53 Cooper Street.

42-44 and 32-40 Holt Street

49. A submission was made on behalf of the Owners - Strata Plan (SP) 62478 and the Owners - SP 66139, which I understand to comprise the properties otherwise known as 42-44 and 32-40 Holt Street (letter to Council from JS Mueller & Co Lawyers dated 18 October 2018). The submission I consider here is in regard to certain access rights enjoyed by these properties over the subject site (45 Cooper Street). These rights are understood to provide access for repairs and maintenance purposes. It is agreed between the affected parties to this arrangement that these rights had originally been registered on each of the abovementioned Strata Plans as a Right of Way. It is also agreed that in 2016 an agreement was reached whereby the rights of way would be extinguished and in a sense replaced by an easement for access and maintenance. The submission is that access for repair and maintenance purposes should be taken into account in the consideration of the development application. The submission is that there is no suggestion in the plans, or in the draft consent conditions for the proposed development, which references these access rights, and that to allow the development to proceed without due account of them would effectively extinguish these rights.

50. The solicitors for the applicants have responded to this submission (filed letter from Berswick Lynch Lawyers to Registrar dated 26 October 2018) noting the existence of (and providing a copy of) a Deed of Agreement between the relevant parties which: “affords the objectors immediate equivalent access for repairs and maintenance, pending creation of the new easement.” Other points noted in this letter refer to no obstructions in the corridor in the corridor set aside for the new easement in favour of the objectors. Moreover the application includes a demolition management report (see Tab 30 to Class 1 application filed 24 November 2017) which sets out how the agreed access for the objectors would be preserved throughout demolition and construction should the current application be approved.

51. During the site view, this issue came to attention and it was noted that the plans show physical access would not be prejudiced for the required repairs and maintenance. I also note the existence of the Deed of Agreement, and accept the submission on behalf of the applicant that agreements have been reached as indicated in the Deed.

52. Given the existence of the Deed and the physical configuration of the proposal, the particulars of the intended future easement for repairs and maintenance do not require further attention in the assessment of the proposal.

47-53 Cooper Street

53. There are some parallels with regard to the issue of fire egress from 47-53 Cooper Street. Submissions from residents and owners of 47-53 Cooper Street claimed that insufficient arrangements were made, with the subject proposal, for fire egress from 47-53 Cooper Street, across the subject land.

54. Exhibit E evidences certain historical events. It is indicated that there has been some dispute over time between owners of 47-53 Cooper Street and the owners of 45 Cooper Street as to the question of the use of 45 Cooper Street for fire egress. I reference in particular letters to Council dated 24 March 2017 and 11 September 2017 Beswick Lynch Lawyers which suggest significant limits to access rights. I further note that the issue has not been pressed as a contention by Council.

55. The circumstances which would prevail should the development proceed seem to generally retain the current arrangements, where there is a doorway from 47-53 Cooper Street opening onto the subject site, and there is a capacity for access to be available from this doorway to the street.

56. The issues of access and egress have been addressed in Condition 31(b)(xvii) to the proposed conditions of consent (of some pertinence to 42-44 and 32-40 Holt Street as well), which provides that:

“…Demolition and excavation activity must not cause damage to or adversely affect the safe access and egress of the subject building or any adjacent buildings.”

57. In evaluating development applications, a central question for a consent authority (albeit among other things) is the likely impacts of that development (s 4.15(1)(b) of the EPA Act). It seems to me that in this case there is no particular impact on fire egress arrangements for the adjacent property (47-53 Cooper Street) proposed with the application. A draft condition of consent (15) would direct against the obstruction of the pathway running west of the common boundary.

Finding

58. Again, having regard to the fact that Council has not pressed the issue in the contentions, it does not seem to me reasonable or necessary for the Court in this Class 1 application to consider this issue further, or, in effect , attempt to appreciate the full particulars and act to resolve what seem to be private disputes between parties, with some history, some of which commence a considerable time before the lodgement of the application.

Heritage

59. Objectors (including through use of submissions from specialist advisors) argued that the existing terraces in Cooper Street enhance the local heritage and visual character and that this has been previously a reason to prevent development of the site. Objectors suggest the proposal is not seen to warrant the demolition of the existing terrace.

60. I note from the Council’s ASOFC (Exhibit 3) that the site is not a listed heritage item, nor is the site within a heritage conservation area. I accept the evidence from the experts that the design now gives appropriate regard for urban design and streetscape presentation.

Design Excellence

61. Under cl 6.21(3) of the LEP, before development consent is granted, there is a need for the consent authority to be satisfied that the proposal exhibits design excellence. Subclause (4) then lists matters a consent authority is required to have regard to in making this assessment of satisfaction.

62. Council had listed a set of issues in regard to cl 6.21(3) in its original and subsequent statement of contentions. During the course of the modifications to the plans, these matters (landscaping, materials, letterboxes, internal layout, fire hydrant) were seen as satisfactorily addressed by Council. It is also noted that the issues of solar access and setbacks were listed as particular contentions initially, but again and according to the evidence the amended plans satisfied Council’s points of contention. I can also concur that I accept this evidence and see the proposal as dealing appropriately with the challenges involved in accommodating the site’s development potential in an appropriate fashion. I have mentioned the amenity considerations above, but can similarly note the treatment of the streetscape presentation and public domain interface, including the setback of the upper levels as appropriate. I concur with the expert evidence that the proposal satisfies cl 6.21(3) as provided in the material referenced at paragraph [17].

Other matters

63. I will consider two further issues raised by objectors here. The first is in regard to what is seen as an imbalance of impacts versus benefits. It is the suggestion that the proposal, is providing gains (say pleasant accommodation) to a small number of future residents only (along with the commercial interests behind the project). In contrast, the impact will be felt by a much larger number of people. It seems to be the suggestion that if the number of units in the proposed development were increased (all other things remaining the same), the consideration of the impacts of the proposal might be moderated. As I see it, the site is quite small with significant constraints in terms of rear setbacks, and reasonably regular style accommodation is proposed. The development seems to be aligned with the LEP objective relating to the provision of a range of housing types. My assessment of impact would not have varied with a larger yield on the site. Although I acknowledge that new policy levers may have arisen were affordable housing policy provisions triggered.

64. The second issue is that the objectors had been in a sense “abandoned” by City of Sydney Council in the Council’s agreement to consent orders, and that this has been “unjust”. Or that the high levels of community based opposition had been inappropriately set aside or ignored. It is clear and entirely understandable that the unfolding events were of considerable frustration to the concerned residents. For the record, I would note the expert evidence of Council’s experts as provided in Court was thoughtful and coherent. My own observation would be that it is not unusual for experts to change position as amendments to plans are prepared in response to initially raised contentions. Indeed, openness to such position changes (dependent on the adequacy of amendments) has alignment with the professional obligation of expert witnesses.

Conclusion

65. This site can be seen as one for which further development can be expected in light of the zoning, FSR and height controls. Unfortunately for some, this places some adjacent properties (including in particular certain premises within 47-53 Cooper Street and 42-44 Holt Street) in a position of vulnerability to impact, with 32-40 Holt Street considerably less affected. I have considered the submissions from the objectors. But based on the evidence before me, and given the applicable controls, I am satisfied that the development is acceptable on its merits. Therefore, I have decided to grant development consent in accordance with the conditions consented to by the parties to the appeal.

Orders

66. The orders of the Court are:

1. Leave is granted to rely on the amended plans referenced in Annexure “A”.

2. The appeal is upheld.

3. Development Application No. D/2017/1251 for the demolition of an existing terrace building at 45 Cooper Street, Surry Hills, and construction of a seven-storey mixed use building with ground floor retail and three apartments above, is approved subject to the conditions set out in Annexure “A”.

4. The exhibits are returned with the exception of Exhibits 1, 3, 4, 5, A, B, D, E, G.

___________

P Walsh

Commissioner of the Court

Annexure A (111 KB, pdf)

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Decision last updated: 04 December 2018