Season Group Pty Ltd v Council of the City of Sydney

[2016] NSWLEC 1354

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Season Group Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1354

Hearing dates:

25 and 26 July 2016

Date of orders:

30 August 2016

Decision date:

24 August 2016

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

See paragraph [55]

Catchwords:

DEVELOPMENT APPLICATION: Demolition, alterations and additions to existing building and construction of new commercial/residential development. Compatibility of the site with flooding constraints.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Sydney Local Environmental Plan 2012

Category:

Principal judgment

Parties:

Season Group Pty Ltd (Applicant)

  Council of the City of Sydney (Respondent)

Representation:

Counsel:
Mr I Hemmings, SC (Applicant)

 

Ms A Pearman, Barrister (Respondent)

   

Solicitors:
Mills Oakley (Applicant)

  Council of the City of Sydney (Respondent)

File Number(s):

2016/152934

Judgment

1. Season Group Pty Ltd (applicant) is appealing under s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of a development application (D/2015/421) by the Council of the City of Sydney (council) for demolition, alterations and additions to existing building and construction of new commercial/residential development at 22-38 Yurong Street, Darlinghurst (site).

2. The main issue that remains in dispute is whether the car park incorporates appropriate measure to manage flood risk. The other contentions have been resolved by amended plans, conditions and the agreement of the experts.

Site and locality

3. The site is irregular in shape with an area of 1322.8sqm. It has a frontage to Yurong Street to the west, Stream Street, to the rear (east) and Stanley Lane to the south. The site falls approximately 1.4m from west to east, and between 1.1 to 1.6m from south to north.

4. The site is developed with two separate commercial buildings. The building on the southern part of the site was built in 1937 in the “inter-war functionalist style” as a service station and car showroom. It is brick construction with a saw tooth roof behind a parapet and presents a one storey to Yurong Street and two storeys to Stream Street. The building on the northern part of the site dates from the mid-1970s and is constructed of brick with a parapet. Car access to both buildings is off Stream Street.

5. Stream Street has an irregular alignment that corresponds to the historic water channel which still exists below ground level. The rear alignment of both buildings on the site corresponds to the alignment of Stream Street.

6. Adjoining the site to the north, is a four storey residential building known as Museum Lodge (18-20 Yurong Street). To the south, on the opposite side of Stanley Lane, is a three to four storey commercial building (40-44 Yurong Street). Opposite the site, on the western side of Yurong Street is Sydney Grammar School. To the east on the opposite side of Steam Street, are a number of commercial buildings with frontages to Riley Street.

7. The surrounding area is characterised by a mix of residential, commercial and educational uses.

Statutory framework

8. The site is zoned B4 Mixed Use under Sydney Local Environmental Plan 2012 (LEP). The development is permissible with consent. The LEP provides development standards of relevance to the application, including a maximum height of a building of 18m (cl 4.3) and maximum Floor Space Ratio (FSR) of 2.5:1 (cl 4.6). The application does not comply with the height standard and the applicant has submitted a written request to vary the standard under cl 4.6 of the LEP. Following amendments to the proposal, the council is satisfied that the requirements of cl 4.6 are met and there is power to consider the application on its merits.

9. The site is within the East Sydney Heritage Conservation Area (HCA) and the former service station and car showroom on the southern part of the site is identified as a contributory building. Following amendments to the proposal, the council is satisfied that the requirements of cl 5.10 of the LEP are met and that the impact of the proposal on the significance of the HCA is acceptable.

10. The remaining area in dispute is whether the proposal satisfies the requirements of cl 7.15 of the LEP for flood planning, which provides:

7.15 Flood planning

(1) The objectives of this clause are as follows:

(a) to minimise the flood risk to life and property associated with the use of land,

(b) to allow development on land that is compatible with the land’s flood hazard, taking into consideration projected changes as a result of climate change,

(c) to avoid significant adverse impacts on flood behaviour and the environment.

(2) This clause applies to land at or below the flood planning level.

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:

(a) is compatible with the flood hazard of the land, and

(b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

(c) incorporates appropriate measures to manage risk to life from flood, and

(d) is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and

(e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

(4) A word or expression used in this clause has the same meaning as it has in the NSW Government’s Floodplain Development Manual (ISBN 0 7347 5476 0) published in 2005, unless it is otherwise defined in this clause.

(5) In this clause:

flood planning level means the level of a 1:100 ARI (average recurrent interval) flood event plus 0.5 metres freeboard.

11. Sydney Development Control Plan 2012 (DCP), the NSW Floodplain Development Manual 2005 (Flood Manual), the Interim Floodplain Management Policy (Flood Policy), the Woolloomooloo Catchment Floodplain Risk Management Plan 2016 (Risk Plan) and the Woolloomooloo Flood Study (Flood Study) provide guidance as to the satisfaction of cl 7.15 of the LEP.

12. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development applies to the residential development. Clause 28 requires consideration of the design quality of the development when evaluated in accordance with the design quality principles in Schedule 1 and the Apartment Design Guide (ADG).

Background and proposal

13. The development application was lodged on 1 April 2015. It proposed the demolition of the northern building, alterations and additions to the former service station on the southern part of the site and construction of a new six storey commercial residential building with two levels of basement parking. The application was amended during assessment and refused by council on 23 November 2015.

14. The appeal was lodged on 22 December 2015 against council’s refusal of the application. A conciliation conference under s 34 of the Land and Environment Court Act1979 (LEC Act) commenced on site on 21 March 2016 where the Court heard from objectors to the application and the parties’ experts, viewed nearby properties and the surrounding area. The parties did not reach agreement and the conciliation was terminated. The parties did not object to my hearing the appeal and that the site view and discussions in the conciliation conference could be evidence to in the proceedings.

15. The applicant sought and was granted leave to amend the application on 24 May 2016. The main change involved the deletion of the sixth storey apartments to better comply with the height control and comply with the FSR control. These plans were renotified and generally addressed the concerns of objectors in relation to view loss. Leave was granted during the hearing to further minor changes made in response to the objectors’ submissions and the experts’ evidence (Amended Application).

16. The Amended Application comprises:

1. Basement parking for 15 cars (including three adaptable), garbage rooms and storage areas. The existing basement under the southern building is to be retained and expanded with access off Stream Street utilizing an existing entry with a new flood door.

2. 667sqm of commercial space in the ground level of the exiting southern building.

3. 25 dwellings (including three dual key apartments which can be configured as either three bedrooms or as separate studio and two bedroom apartments). The dwellings are in a new five level building on the northern part of the site and above the ground level in the retained building.

4. Roof top communal open space

17. The proposal would have a maximum building height of 21.83m which exceeds the 18m height standard in the LEP. A written request to vary the standard was submitted with the Amended Application. The non-compliant height is largely attributable to the lift over run, stairs, and part of the upper level apartments due to the slope of the land in the north east corner. The FSR is 2.4:1, which is below the FSR control of 2.5:1 under the LEP.

The evidence

18. Mr Cirillo and Mr Dickson, for the applicant, and Ms Thompson and Ms Nacard, for the council, addressed the impacts of the original application and recommended changes. They reviewed the Amended Application and a view analysis and agreed that there would not be unreasonable view impact resulting from the development and that the variation to the height standard is acceptable. I accept the evidence of the experts and am satisfied that the requirements of cl 4.6 of the LEP to vary the height standard are met and there is power to consider the application on its merits. During the hearing, the experts also provided further evidence on alternate vehicular access off Yurong Street or the provision of no on-site parking, which is discussed below.

19. Mr Bewsher, for the applicant, and Ms Collier, for the council provided evidence on the flooding issues associated with the proposal.

20. The Court visited the site and heard from two objectors. The concerns of the objector from Stanley Street had primarily related to view loss and these were largely resolved by the amendments to the proposal to delete the sixth level. The concerns of the objector from the adjoining building, Museum Lodge, were that the development may impact on its development potential. Although Museum Lodge is a heritage item, it is below the maximum height limit and therefore has the potential for an extension. The development is to be built to its boundary, which the objector considered to be contrary to the ADG and may result in Museum Lodge being an “isolated site”.

21. Council did not raise the loss of development potential of Museum Lodge as a contention in the proceedings. The ADG anticipates zero side setbacks where the desired character is for continuous street walls and no building separation is required where building types incorporate blank party walls. The development is built to the boundary with a blank wall and will comply the Building Code of Australia (BCA). However, the proposed boundary wall does not extend the whole length of the development presumably to provide natural light to bedroom 1 in the northern unit on levels 2, 3 and 4 and the adjoining balconies, as well as the balcony facing Yurong Street on Level 4. If Museum Lodge were to be extended it would probably also be built to the boundary and consequently the natural light to these areas would be reduced. In these circumstances, it is appropriate to include a condition that requires a covenant that alerts the future owners of these units that their access to northern light may be restricted by any future development of Museum Lodge that is built to the common boundary.

Flooding

22. Mr Bewsher and Ms Collier agreed that the land is flood prone land which is subject to flash flooding. Stream Street is identified as a “hot spot” under the Flood Study, which provides the best available flood information for the site and the surrounding area.

23. The experts disagree on the suitable flood planning level (FPL). In Mr Bewsher’s opinion the FPL is the 1% Annual Exceedance Probability (AEP) for Stream Street (13.3m AHD). Whereas, Ms Colliers considers it is the 1% AEP plus 500mm (13.8m AHD) plus an allowance for climate change, which would equate to the Probable Maximum Flood (PMF) level of 14.1m AHD. The disagreement is based on whether the car park is a basement/below ground or above ground car park for the purpose of the Flood Policy. Regardless of this disagreement the experts accept that with the proposed mechanical measures such as the “Flood Panel Lift Door’ (flood door) and treatment of openings, the car park would be flood proofed to the PMF. However, they disagree on whether the level of risk is acceptable due to the potential for failure of the flood door.

24. Ms Collier acknowledged that for the car park to be exposed to flooding the flood door would need to firstly be in an open position (the default position of the door is closed); secondly, the flood door would need to fail; thirdly, the door would need to not be repaired; and fourthly, there would need to be a flood. She accepted that the probability of the combination of these events occurring is low but considered that the consequences would be high if they did occur. She was concerned that the door had not been certified to withstand the loads of flood waters and impacts in a PMF and had only been tested to 1.5m for water tightness. Furthermore, she considered that the location of the door sensor was accessible from a public place and could be damaged and that there is no statutory regime that would ensure the ongoing maintenance of the door and the sensor.

25. Ms Collier did not consider that the change of use of the basement from commercial car park (with other uses including a small gym and meeting room) to a residential car park, the reduction in the number of cars and the improved flooding measures would reduce the risk to people and property when compared to the current use of the site, and that as the proposal is a substantial redevelopment of the site, it should be designed to minimise flooding risks.

26. Mr Bewsher considered that the aim of the flooding policies is to reduce the flooding risk to an acceptable level and that the risk cannot be eliminated. The existing car park has no flood mitigation measures and is exposed to significant risk, which would be reduced by the proposal through the flood proofing of the car park to the PMF, the removal of commercial uses and the reduction in the number of cars as well as vehicle movements. He considered that the potential for failure of the flood door was minimal due to the backup measures such as automatic closure of the flood door to prevent it being opened in a flood. In addition, the conditions of consent requiring regular maintenance and the Emergency Response Plan (ERP) would further reduce risk to an acceptable level. He agreed that the flood door should be certified but considered that this could occur as a condition of consent, similar to the certification required for the structural adequacy of the building. Even if, in the unlikely event water were to access the car park, Mr Bewsher considered that it would be unlikely that people would be present due to measures such as the early warning systems, the restriction on lift access to the basement, signage and the occupants of the building being aware of the flood risk.

27. Ms Collier and Mr Bewsher agreed that access of Yurong Street would be preferred, although this is also flood prone but with less speed and volume of water than Stream Street. They understood that there were heritage, planning and traffic issues associated with the access from this street.

28. The Amended Statement of Facts and Contentions did not contend that vehicular access should be off Yurong Street. However, in response to the issues raised by the Flooding experts during the hearing, Mr Cirillo, Mr Dickson, Ms Thompson and Ms Nacard briefly examined the feasibility of providing access off Yurong Street. They acknowledged that on planning, heritage and traffic grounds it was not the preferred option but Ms Thompson and Ms Nacard accepted that given the flooding constraints, a single lane access off Yurong Street could be considered if located in the proposed infill building on the Yurong Street frontage in the northern part of the site. Any access would need to carefully designed having regard to streetscape and pedestrian safety.

29. Mr Dickson outlined the constraints of providing access off Yurong Street, including a ramp up from Yurong Street in the order of 15m to achieve the FPL and a further ramp down or car lift to access the basement. In his opinion, a significant amount of the ground level in the infill building would be occupied by ramps with the loss of at least two of the three dwellings and an active street front. Mr Cirillo considered that an access opposite an entry to Sydney Grammar School in a street with a high volume of traffic would be inconsistent with the requirements of the DCP and likely to result in impacts on traffic and pedestrian safety.

30. These experts also held different opinions about development options if it is not possible to provide access to the site and car parking. They agree that there is no minimum requirement for parking under the planning controls and that the proposal would not be eligible for any on street parking permits. However, they disagree on whether parking is necessary. In Mr Cirillo’s opinion parking is generally demanded by occupants of high quality residential developments and the site is unlikely to be redeveloped for residential purpose without parking on site or permits for on street parking.

31. Ms Thompson states that there are a number of recent approvals for residential and mixed use developments, which do not provide parking and while she cannot comment on the economic feasibility of the proposal without parking, she notes that it is in an area that is well serviced by public transport and car share arrangements.

32. Following the evidence of the experts, at the request of the Court, a proposal for an additional flood door was prepared by the architect of the development in consultation with Mr Bewsher. The additional door would be an “in ramp flood door” that rises from the ground and Mr Bewsher considered the use of a different type of flood door provides an increased level of flooding immunity, additional redundancy and reduces the risk of failure. It would also have a back-up power supply that is independent from the back-up power supply for the flood panel lift door. Council did not comment on the additional flood door but filed alternate conditions to be imposed if the Court were minded to approve this option.

Findings

33. Stream Street is identified in the Flood Study as a flooding “hot spot”, as are other areas within the 23ha catchment of the Flood Study, including parts of Crown Street, Victoria Street and Bourke Street. The Flood Study states:

11.1 Flooding Hot Spots

Historically flooding problems occur throughout the catchment, with seven instances of reported above floor flooding …Some of the areas where flooding is problematic are described herein as “hotspots” and are discussed in some detail.

11.1.1 Stream Street

Stream Street, as the name suggests, is along a natural depression and was once a major overland flow-path within the Woolloomooloo catchment. With the construction of William Street and buildings along Yurong Lane, this flow path is effectively blocked and water ponds which has historically caused above floor flooding of nearby properties.

34. The Flood Study identifies the flooding behaviour in Stream Street, including the speed and volume of flood that can occur. Mr Bewsher noted that the Flood Study is “conservative” as it assumes that 100% of the grates and 80% of the kerb inlets are blocked. However, the experts generally agreed on the flood characteristics of the area and the associated risks.

34. Clause 7.15 of the LEP applies to the site as it is below the FPL. It requires satisfaction of the following matters before consent can be granted:

(a) is compatible with the flood hazard of the land, and

(b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

(c) incorporates appropriate measures to manage risk to life from flood, and

(d) is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and

(e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

36. Guidance as to the satisfaction of cl 7.15 of the LEP is provided by documents including the Flood Manual which states that its primary objective is:

To reduce the impact of flooding and flood liability on individual owners and occupiers of flood prone property, and to reduce private and public losses resulting from floods. At the same time the policy recognises the benefits flowing from the use, occupation and development of flood prone land.

…. The policy avoids unnecessary sterilisation of flood prone land. Equally it ensures that flood prone land is not the subject of uncontrolled development inconsistent with its exposure to flooding.

37. The Interim Flood Policy provides:

The City has the responsibility to manage floodplains to ensure that any:

● new development will not experience undue flood risk; and

● existing development will not be adversely flood affected through increased damage or hazard as a result of any new development.

38. Interim Flood Policy establishes the FPL for different uses. The commercial and residential floors of the proposal are above the FPL in Interim Flood Policy. However, the level of the car park and its access are below the FPL but the proposal seeks to flood proof the car park to the PMF through the use of the flood door and treatment of other openings.

39. The Risk Plan identifies upgrading of the trunk drainage system in the catchment to address the flood risk at several hotspots, including Stream Street, but recognises the works are “prohibitively expensive” and have been given a “low priority” based on the benefit-cost ratio.

40. The key disagreement between the parties is whether 7.15(3)(a) and (c) of the LEP are satisfied. In particular, whether the proposed flood door is an appropriate measure to manage risk to life from the flood and consequently whether the proposal is compatible with the flood hazard of the land.

41. The management of risk and the compatibility with the flood hazard need to be considered within the context of not only the flood hazard but also the existing risk on the site and within the street.

42. The site is developed with two commercial buildings and each has a car park with access off Stream Street. The combined existing car parks have approval for a total of 30 car spaces. A meeting room, store room and staff gym are also approved (D/12/1341) in the basement car park. A decked storage area was also approved, which is currently used as a “breakout” seating area.

43. The southern building on the site is to be retained and northern building demolished. The basement will be accessed of a single existing entry and the experts agree that, subject to the flood door being certified, the basement car park will be flood proofed to the PMF and, if operating correctly, there would be an acceptable level of risk. However, the experts disagree on the potential for the flood door to fail and, in the event of failure, whether the level of risk is still acceptable.

44. Ms Collier, under cross examination, acknowledged that the probability of the flood door failing would be low and I accept the evidence of Mr Bewsher that the proposed flood door is an acceptable measure to minimise the flood risk to property and for occupants of the building. The measures that have been employed through the design of the flood door, its default shut position, the sensor and an early warning system reduce the potential for the flood water to enter the building. Furthermore, the additional door which is a different design and separate power source provides an additional safeguard to ensure that the basement would be flood proof. The conditions of consent will provide a regime for maintenance of the flood door and include the requirement for an ERP to be prepared and implemented through a positive covenant on the title of the property. The ERP will require the Owners Corporation to enter into a service arrangement for repairs to all flood designed features of the building within 24 hours and for their ongoing maintenance.

45. Even if the door were to fail, the consequence of failure is significantly less than the current situation, where there could be a greater number of cars (30 commercial) than the number proposed (15 residential) as well as existing uses such as a meeting room and staff gym in the basement. The traffic generation rate for commercial car parking is greater than for residential. These factors increase the likelihood that there could be cars and people present in the basement in the event of a flood with no measures to prevent water ingress into the basement. The proposal includes a range of measures that would limit the likelihood of people being present in the basement in the event of a flood including the early warning system, automatic closure of the flood door to ensue vehicles cannot enter or leave the basement, methods of egress from the basement and controls to prevent the lift from descending to the basement. In comparison to the existing arrangement, the proposal considerably reduces the risk.

46. The proposal therefore incorporates appropriate measures to manage risk to life from flood and is compatible with the flood hazard of the land given that it minimises the existing risk to an acceptable level. In accepting that the basement will be flood proofed to the PMF and that the flood door is unlikely to fail and the added security of the additional flood door, I note that there are other basement and at grade car parks and on street parking in Stream Street, and there is no signage or early warning system that would alert drivers or pedestrians not to use the street or the surrounding area in the event of a flood. Mr Bewsher has suggested that the sensor could also alert people to flooding in the street and thereby limit access. I accept that this measure would further improve risk to uses of the area and the development as would the provision of signage alerting people to the flooding hazard. A condition should therefore be included that requires the sensor to also activate an alarm system (flashing lights) on the exterior of the building in Stanley Lane and the entry to Stream Street to warn of flooding. A condition to this effect should therefore be included. Council may consider whether signage or other measures such as alarms on other buildings or parking restriction would further reduce the risk in the streets.

47. While access off Yurong Street may be able to better address the flood characteristics of the site, it is likely to raise other issues in relation to streetscape and pedestrian safety as well as reduce the development potential of the site. In addition, Yurong Street, although not a hot spot, is a an area of high flood hazard and even if the car park access were above to FPL, the risk of people using this street to access the car-park would remain.

48. The provision of on-site parking would add greater amenity to the development, and the units would probably be able to be marketed at a greater price with parking than without. However, this does not mean that a residential development of the site could not occur or be viable. There is no minimum requirement for on-site parking in the LEP or DCP and if the flooding risk posed by the development were unacceptable, the deletion of the basement car park would be required. However, as discussed above, the car park already exists and the risk is acceptable. Even if parking were to be deleted, the basement would still remain and be used for storage, garbage rooms and potentially for a loading dock for the commercial uses.

49. For the above reasons, I am satisfied that the proposal meets the requirements of cl 7.15 of the LEP and that consent may be granted.

Conditions

50. The parties agree on the proposed conditions with the exception of whether the requirement for certification of the flood door be imposed as a deferred commencement condition of as an operative condition. I accept council’s position that the certification of the flood door is a matter that must be satisfied for the development to proceed and is therefore appropriate that it be a deferred commencement.

51. As discussed above, the additional flood door further reduces the flooding risk and the version of the conditions that refers to this door is to be imposed.

52. An additional condition is to be imposed that requires a sensor to also activate an alarm system (flashing lights) on the exterior of the building in Stanley Lane and the entry to Stream Street to warn of flooding.

53. An additional condition which requires a covenant that alerts the future owners of units adjoining the northern boundary of the site that their access to light may be restricted by any future development of Museum Lodge is also to be imposed.

DIRECTIONS

54. The Court directs that the parties are to file agreed conditions which incorporate the matters in paragraph 50-53 by 29 August 2016. Orders approving the application will then be issued in Chambers.

Addendum and final Orders

55. In accordance with directions in my judgment of 24 August 2016, the parties provided me with the agreed conditions of consent on 29 August 2016. I am satisfied that the conditions of consent accord with my findings and accordingly I make orders in chambers as follows:

1. The requirements of cl 4.6 of Sydney Local Environmental Plan 2012 (LEP) to vary the height standard in cl 4.3 of the LEP are satisfied;

2. The appeal is upheld;

3. The development application (D/2015/421) for demolition, alterations and additions to an existing building and construction of new commercial/residential development at 22-38 Yurong Street, Darlinghurst, is approved subject to the conditions in Annexure A;

4. The exhibits, except Exhibits 1, D and F, are returned. 

Annelise Tuor

Commissioner of the Court

152934.16 - Annexure A - Conditions (196 KB, pdf)

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Amendments

02 September 2016 - Addendum - Final Orders

Decision last updated: 02 September 2016