Stamford Property Services Pty Ltd v City of Sydney

[2015] NSWLEC 1189

Land and Environment Court

New South Wales

Medium Neutral Citation:	Stamford Property Services Pty Ltd v City of Sydney & Anor [2015] NSWLEC 1189
Hearing dates:	29, 30 January, 2, 3, 4 February 2015
Date of orders:	28 May 2015
Decision date:	28 May 2015
Jurisdiction:	Class 1
Before:	Pearson C and Smithson AC
Decision:	1. The appeal is dismissed. 2. Development Application D/2013/2011 for the retention and adaptive re-use of the former Department of Health building; partial retention and re-use of part of the Sir Stamford Hotel building; construction of a 19 storey tower building accommodating residential apartments, retail/commercial floor space and basement car parking spaces; and ancillary landscaping and public domain improvement works, at 93-97 Macquarie Street, Sydney, is refused. 3. The exhibits are returned except for Exhibits A, C1, C13 and M1.
Catchwords:	DEVELOPMENT APPLICATION – Retention and adaptive re-use of heritage building – Construction of residential and commercial tower – Whether exhibiting design excellence – Competitive design process - Whether site specific development control plan required – Building setbacks – Height control - Special Conservation Area – Impacts on heritage items – View impacts – Internal amenity – Privacy
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Heritage Act 1977 Interpretation Act 1987 City of Sydney Act 1988 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development Central Sydney Local Environmental Plan 1996
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 Al-Kateb v Godwin (2004) 219 CLR 562 APT Peddle Thorp & Walker Pty Ltd v Sydney City Council [1997] NSWLEC 186 Bettar v Council of the City of Sydney [2014] NSWLEC 1070 Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338 CIC Insurance v Bankstown Football Club Ltd (1997) 187 CLR 384 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69 Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 Csillag v Woollahra Municipal Council [2011] NSWLEC 17 Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 GTAA Pty Ltd v South Sydney City Council (2001) 117 LGERA 51 Hallgath v Australian Community Pharmacy Authority (No 2) (2011) 197 FCR 15 Marina Bay Developments Pty Ltd v Pittwater Council [2007] NSWLEC 41 Momcilovic v The Queen (2011) 85 ALJR 957 One.Tel Ltd v Australian Communications Authority (2001) 180 ALR 521 Owners of Strata Plan No 3397 v Tate (2007) 70 NSWLR 344 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Stamford Property Services Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1206 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 Tran v Commonwealth (2010) 271 ALR 1 Zhang v Canterbury City Council (2001) 115 LGERA 373
Category:	Principal judgment
Parties:	Stamford Property Services Pty Ltd (Applicant) Council of the City of Sydney (First Respondent) Mulpha Australia Pty Ltd (Second Respondent)
Representation:	Counsel: Mr A Galasso SC (Applicant) Mr P Clay SC (First Respondent) Mr N Hutley SC with Mr C Ireland (Second Respondent) Solicitors: Norton Rose (Applicant) City of Sydney (First Respondent) Addisons (Second Respondent)
File Number(s):	10627 of 2014

Judgment

Introduction

1. Stamford Property Services Pty Ltd (Stamford) appeals pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by the Council of the City of Sydney (the Council) of a development application (D/2013/2011) for development at 93-97 Macquarie Street, Sydney (the site) involving the retention and adaptive re-use of the former Department of Health building; partial retention and re-use of part of the Sir Stamford Hotel building; construction of a 19 storey tower building accommodating 102 residential apartments, 1,296sqm of retail/commercial floor space and 65 basement car parking spaces; and ancillary landscaping and public domain improvement works.

2. The site is Lot 12 DP 1197140, known as 93-97 Macquarie Street, located on the western side of Macquarie Street between Albert Street and Bridge Street. The site has frontage to Macquarie Street and to Albert Street. Occupying the majority of the site is the Sir Stamford Hotel, a 10 storey building constructed in 1991, with 101 guest rooms and 109 basement parking spaces. The basement car parking is currently operated as a commercial car park, accessed from Albert Street. At the northeastern corner of the site is the heritage listed 4 storey brick building constructed between 1896 and 1898, known as the former Health Department building.

3. The site is situated on the north east corner of the block bounded by Albert Street to the north, Macquarie Street to the east, Bridge Street to the south and Phillip Street to the west. The location of the site is shown marked in red on the following aerial photograph (Figure 2 in Ex C1):

4. The site has an area of 1,611sqm and is burdened by a number of easements that benefit adjacent properties, including:

• a right of carriageway that runs in parallel to the western boundary of the site, benefiting the Intercontinental Hotel; and

• an easement approximately 3m in width for light and air along the southern boundary of the site benefiting the adjacent property to the south, Transport House.

5. The topography of the site falls from the southeastern corner of the site on Macquarie Street towards the northwestern corner on Albert Street with a change of level of approximately 6.8m.

6. The block in which the site is located includes a number of buildings dating from the early 19th century, including buildings and sites listed on the NSW State Heritage Register and buildings listed as items of local heritage significance. Buildings listed on the State Heritage Register include the Justice and Police Museum (4-8 Phillip Street) immediately adjacent to the rear (west) of the site, the former Treasury Building which comprises part of the Intercontinental Hotel (at 117-119 Macquarie Street), and the former Health Department building on the site being the corner of Macquarie Street and Albert Street. The Royal Botanic Gardens and The Domain are also heritage listed and are to the east extending across the Cahill Expressway to a grassed area fronting Macquarie Street immediately opposite the site. Transport House, a 5 storey commercial building immediately adjacent the site to the south at 99 Macquarie Street, is listed as a heritage item of local significance.

7. On the northern side of Albert Street opposite the former Health Department building (and therefore the site) is the Royal Automobile Club (RAC) (89-91 Macquarie Street), listed on the State Heritage register. On the southern side of Bridge Street are the Chief Secretary’s Building (121 Macquarie Street) and The Astor apartments (123 Macquarie Street), that are also heritage listed.

8. The proposed development is “major development” as defined in s 31 of the City of Sydney Act 1988 and, pursuant to s 40(1) of that Act, the Central Sydney Planning Committee (CSPC) has the function of determining the application. The proposed development is “integrated development” as defined under s 91 of the Act, as an approval under s 58 of the Heritage Act 1977 is required.

9. Pursuant to s 39(2) of the Land and Environment Court Act 1979 (the Court Act), the Court in determining the appeal exercises the functions and discretions of the consent authority. Section 39(6A) of the Court Act provides that the Court may determine the appeal whether or not the consent authority has obtained the general terms of approval of each relevant approval body, in this instance the Heritage Council; is not bound to refuse an application for development consent because an approval body has decided not to grant its approval or has failed to advise whether or not it will grant its approval; and may determine the appeal even though a development consent granted as a result of the appeal would be inconsistent with the general terms of approval of an approval body.

10. Stamford lodged development application D/2013/2011 on 20 December 2013, and filed the Class 1 appeal against the deemed refusal of the application on 15 August 2014. Mulpha Australia Pty Ltd (Mulpha) is the owner of Transport House at 99 Macquarie Street and the Intercontinental Hotel (including the former Treasury Building) at 117-119 Macquarie Street. On 2 October 2014 Mulpha was joined pursuant to s 39A of the Court Act as a party to the proceedings: Stamford Property Services Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1206. Separate proceedings in Class 4 of the Court’s jurisdiction initiated by Mulpha on 30 May 2014 have been resolved.

The proposed development

11. The proposed development comprises the retention and adaptive reuse of the former Health Department building for retail and commercial uses and conservation works, and the partial demolition and adaptive reuse of part of the existing Sir Stamford Hotel and construction of a 19 storey (plus plant level) tower for residential and commercial uses. The existing basement car parking levels which include two levels of above ground façade and structure along the western boundary are to be retained. The development application was amended on 1 July 2014, and the proposed building now comprises:

• 102 residential dwellings, being 8 studio apartments, 28 one-bedroom dwellings, 47 two bedroom dwellings,19 three bedroom dwellings, and 16 adaptable apartments;

• 65 car parking spaces, being 62 residential spaces and 3 commercial/retail car parking spaces, and one service vehicle space;

• 131 bicycle parking spaces and 5 motorcycles parking spaces;

• Common open space on level 18 (246sqm); and

• Pool and lounge (1272sqm) and gym (50sqm).

12. Private open space is provided for 28 apartments in the form of Juliet balconies, wintergardens for 42 of the two and three bedroom apartments, and terraces for four of the two and three bedroom apartments.

13. The proposed development includes internal screening to the southern façade to mitigate privacy impacts on Transport House and on the northern façade to mitigate privacy impacts on Quay Apartments.

14. The proposal includes construction of a new courtyard and pedestrian connection from Macquarie Street and Albert Street with a through site link (minimum width 2m) publicly accessible during the day and evening. Soft and hard landscaping works are proposed for the lower ground level, ground level, level 8 and level 18. Works proposed for the basements include retention of the existing loading dock and single vehicular access from Albert Street, retention of basement columns, and removal of redundant ramps at basement levels 2, 3, 5 and 6.

15. In its original DA and the amended DA Stamford states that the proposed building height is 60.5m plus a single stack of 3.1m. There is a dispute as to the height of the proposed building, discussed below.

16. The proposed development is shown in photomontages on Macquarie Street and Albert Street, figures 1 and 14 in the Architectus Statement of Environmental Effects (Ex A vol 1):

Issues

17. The issues raised in the respondents’ contentions are:

• whether a site specific development control plan or a Stage 1 development application is required;

• whether a competitive design process is required;

• whether the proposed development demonstrates design excellence;

• what are the setbacks required for the Macquarie Street and Albert Street frontages;

• whether the proposed tower exceeds the applicable height control and, if so, whether a variation is justified;

• whether the departures from the required setbacks to all boundaries have unacceptable impacts for bulk and scale, and view sharing impacts, that warrant refusal of the application;

• impacts on the heritage significance of the heritage item on the site and items in the vicinity of the site;

• impacts on the amenity of Transport House; and

• whether the amenity of the proposed residential apartments in terms of solar access, privacy, building separation, and private and communal open space, is adequate.

History of the application

18. The development application the subject of this appeal (D/2013/2011) (the 2013 DA) was lodged with the Council on 20 December 2013. A previous development application, D/2011/2078 (the 2011 DA), seeking consent for the demolition of the Sir Stamford Hotel and construction of a new residential apartment building with ground floor commercial and retail and retention and refurbishment of the former Health Department building was lodged on 21 December 2011 and withdrawn on 1 April 2012.

19. The following chronology summarises central events, including the competitive design process undertaken in 2010 and 2011; the assessment of heritage impacts; changes to the planning controls; and correspondence relating, inter alia, to application of the planning controls. It is based on a chronology prepared by Mulpha (Ex M9), as supplemented by the other parties.

16 March 2010	First pre-DA meeting with Council for DA/2011/2078 (2011 DA) at which time the Sydney Local Environmental Plan 2005 and Central Sydney Development Control Plan 1996 apply
30 March 2010	Letter from Council regarding pre-DA meeting for 2011 DA
November 2010	Competitive Design Alternatives Brief prepared by JBA Urban Planning Consultants (JBA)
November 2010	Heritage Issues Report prepared by Graham Brooks & Associates
18 November 2010	Competitive Design Alternatives Brief endorsed by Council
27 November 2010	Competitive Design Alternatives Brief issued
2 February 2011-4 April 2011	Draft Sydney Local Environmental Plan 2011 and Draft Sydney Development Control Plan 2010 publicly exhibited
10 May 2011	Choi Ropiha Fighera (now CHROFI) selected as winner of design competition
10 October 2011	Second pre-DA meeting with Council
21 December 2011	2011 DA lodged with Council
31 January 2012	Response to Council’s request for additional information
28 February 2012 and 6 March 2012	Meetings with Historic Houses Trust
15 March 2012	Senior Heritage Specialist of Council provides preliminary assessment of 2011 DA to Heritage Division, Office of Environment and Heritage
1 April 2012	2011 DA withdrawn
2 April 2012	Council internal email correspondence concerning setback above street frontage height
4 April 2012	Report to Heritage Council of NSW Approvals Committee recommending refusal of 2011 DA
17 April 2012	Meeting with Council heritage officer to discuss former Health Department building
23 April 2012	Council’s Design Advisory Panel met regarding 2011 DA
7 May 2012	Draft Sydney Development Control Plan 2010 reported to Council Planning Policy Sub-Committee
14 May 2012	Council resolved to accept officers’ recommendation that Draft Sydney Development Control Plan 2010 be adopted
23 July 2012	Minister issues Interim Heritage Order over former Health Department building
1 August 2012	Heritage Council meeting to consider proposed 2013 DA (in concept)
31 August 2012	Report to Heritage Council prepared by Michael Harrison of Architectus in anticipation of 2013 DA for consideration at Heritage Council meeting
5 September 2012	Site visit and presentation to Heritage Council
14 December 2012	Sydney Local Environmental Plan 2012 and Sydney Development Control Plan 2012 come into force
31 January 2013	Pre-DA meeting for D/2013/2011 (2013 DA)
9 October 2013	Former Health Department building entered onto State Heritage Register
13 November 2013	Email from Architectus to Council seeking clarification of setback control
December 2013	Conservation Management Plan and Heritage Impact Statement prepared by Graham Brooks & Associates
16 December 2013	Email from Council to Architectus regarding site setbacks
20 December 2013	2013 DA lodged with Council
24 December 2013	Council forwards 2013 DA to Heritage Council
8 January 2014 -10 February 2014	2013 DA publicly exhibited by Council
21 January 2014	Email correspondence between Council and Heritage Division concerning setback controls
14 February 2014	Mulpha objects to 2013 DA
5 March 2014	Heritage Council issues general terms of approval
1 April 2014	Architectus responds to submissions received by Council
8 April 2014	Presentation to Design Advisory Panel
16 June 2014	Council requests further design refinement of 2013 DA
1 July 2014	Stamford responds to Council request for design changes and attaches amended plans, montages and supplementary reports
3 July 2014	Council forwards amended documentation to Heritage Council
8 July 2014-23 July 2014	Council renotifies DA with amended documentation provided on 1 July 2014
7 July 2014	Heritage Council asks Council how to interpret setback controls
10 July 2014	Council responds to Heritage Council letter of 7 July 2014
11 August 2014	Council forwards submissions received in relation to renotified 2013 DA to Heritage Council and requests advice as to whether approval would be granted under Heritage Act
15 August 2014	Class 1 proceedings commenced against deemed refusal
20 August 2014	Heritage Council scheduled to meet to consider renotified 2013 DA. Officer report recommends refusal
28 August 2014	Lawyers for Heritage Council advise Mulpha’s lawyers that Heritage Council did not consider renotified 2013 DA

Planning Controls

20. The site is in the B8 Metropolitan Centre zone under the Sydney Local Environmental Plan 2012 (the 2012 LEP), and the proposed development is permissible with development consent. The objectives of the B8 zone, to which regard must be had under cl 2.3(2) of the 2012 LEP, are:

• To recognise and provide for the pre-eminent role of business, office, retail, entertainment and tourist premises in Australia’s participation in the global economy.

• To provide opportunities for an intensity of land uses commensurate with Sydney’s global status.

• To permit a diversity of compatible land uses characteristic of Sydney’s global status and that serve the workforce, visitors and wider community.

• To encourage the use of alternatives to private motor vehicles, such as public transport, walking or cycling.

• To promote uses with active street frontages on main streets and on streets in which buildings are used primarily (at street level) for the purposes of retail premises.

21. The maximum height shown on the Height of Buildings Map (cl 4.3(2)) for the site is 55m. The relevant objectives of the height development standard in cl 4.3 are:

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

(a) to ensure the height of development is appropriate to the condition of the site and its context,

(b) to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas,

(c) to promote the sharing of views,

(d) to ensure appropriate height transitions from Central Sydney and Green Square Town Centre to adjoining areas,

…

22. There are three aspects of height relevant in this appeal: first, establishing what is the height of the development as proposed; secondly, whether the proposed development should have a bonus of up to 10% additional height, as permitted under cl 6.21(7)(a) of the 2012 LEP; and thirdly, to the extent that the proposed development exceeds the maximum height, whether compliance with the cl 4.3(2) development standard should be varied under cl 4.6 of the 2012 LEP.

23. Relevant definitions in the Dictionary to the 2012 LEP are:

building height (or height of building) means the vertical distance between ground level (existing) and the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like.

ground level (existing) means the existing level of a site at any point.

ground level (finished) means, for any point on a site, the ground surface after completion of any earthworks (excluding any excavation for a basement, footings or the like) for which consent has been granted or that is exempt development.

ground level (mean) means, for any site on which a building is situated or proposed, one half of the sum of the highest and lowest levels at ground level (finished) of the outer surface of the external walls of the building.

24. Clause 5.10 contains the heritage conservation provisions. Those provisions include: cl 5.10(4) which requires the consent authority, before granting consent in respect of a heritage item or heritage conservation area, to consider the effect of the proposed development on the heritage significance of the item or area; cl 5.10(5), under which the consent authority can require the preparation of a heritage management document to assess the extent to which the carrying out of the proposed development would affect the heritage significance of the item or area; and cl 5.10(6), under which the consent authority may require the submission of a heritage conservation management plan before granting consent.

25. Div 3 of Part 6 of the 2012 LEP addresses height of buildings and overshadowing, and includes cl 6.17 sun access planes. Clause 6.17(2) provides that development consent must not be granted if the development will result in any building projecting higher than any part of a sun access plane as provided in that clause. It was not in dispute that the proposed development complies with the relevant sun access plane.

26. Div 4 of Part 6 of the 2012 LEP provides for design excellence, in cl 6.21 which currently provides:

6.21 Design excellence

(1) The objective of this clause is to deliver the highest standard of architectural, urban and landscape design.

(2) This clause applies to development involving the erection of a new building or external alterations to an existing building on land to which this Plan applies.

(3) Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence.

(4) In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters:

(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain,

(c) whether the proposed development detrimentally impacts on view corridors,

(d) how the proposed development addresses the following matters:

(i) the suitability of the land for development,

(ii) the existing and proposed uses and use mix,

(iii) any heritage issues and streetscape constraints,

(iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,

(v) the bulk, massing and modulation of buildings,

(vi) street frontage heights,

(vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity,

(viii) the achievement of the principles of ecologically sustainable development,

(ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network,

(x) the impact on, and any proposed improvements to, the public domain,

(xi) the impact on any special character area,

(xii) achieving appropriate interfaces at ground level between the building and the public domain,

(xiii) excellence and integration of landscape design.

(5) Development consent must not be granted to the following development to which this clause applies unless a competitive design process has been held in relation to the proposed development:

(a) development in respect of a building that has, or will have, a height above ground level (existing) greater than:

(i) 55 metres on land in Central Sydney, or

(ii) 25 metres on any other land,

(b) development having a capital value of more than $100,000,000,

(c) development in respect of which a development control plan is required to be prepared under clause 7.20,

(d) development for which the applicant has chosen such a process.

(6) A competitive design process is not required under subclause (5) if the consent authority is satisfied that such a process would be unreasonable or unnecessary in the circumstances or that the development:

(a) involves only alterations or additions to an existing building, and

(b) does not significantly increase the height or gross floor area of the building, and

(c) does not have significant adverse impacts on adjoining buildings and the public domain, and

(d) does not significantly alter any aspect of the building when viewed from public places.

(7) A building demonstrating design excellence:

(a) may have a building height that exceeds the maximum height shown for the land on the Height of Buildings Map by an amount, to be determined by the consent authority, of up to 10% of the amount shown on the map, or

(b) is eligible for an amount of additional floor space, to be determined by the consent authority, of up to 10% of:

(i) the amount permitted as a result of the floor space ratio shown for the land on the Floor Space Ratio Map, and

(ii) any accommodation floor space or community infrastructure floor space for which the building is eligible under Division 1 or 2.

(8) Nothing in this clause permits a consent authority to grant development consent to the following development:

(a) development that would result in any building on land projecting higher than any sun access plane that is taken to extend over that land by operation of Division 3, or

(b) development that results in any building causing additional overshadowing of a kind specified in Division 3, or

(c) development that results in any building on land in Area 1 or Area 2 on the Height of Buildings Map having a height greater than the height of the building that was on the land at the commencement of this Plan.

(9) In this clause:

building demonstrating design excellence means a building where the design of the building (or the design of an external alteration to the building) is the winner of a competitive design process and the consent authority is satisfied that the building or alteration exhibits design excellence.

competitive design process means an architectural design competition, or the preparation of design alternatives on a competitive basis, carried out in accordance with the City of Sydney Competitive Design Policy.

27. The City of Sydney Competitive Design Policy (the CDP) as referenced in cl 6.21(9) is defined in the Dictionary to the 2012 LEP:

City of Sydney Competitive Design Policy means the City of Sydney Competitive Design Policy adopted by the Council on 9 December 2013.

Note. The Policy is made available by the Council on its website ( start="28">

Clause 6.21 as in force at the date development application D/2013/2011 was lodged did not include the definition of “building demonstrating design excellence” in cl 6.21(9). Sub-clause 6.21(7) permitted the granting of additional height or FSR “if the design of a new building, or an external alteration to an existing building, on land is the winner of a competitive design process and the consent authority is satisfied that the building or alteration exhibits design excellence…”. At the time the development application was lodged the Dictionary to the 2012 LEP defined “City of Sydney Competitive Design Policy” as the City of Sydney Competitive Design Policy adopted by the Council on 12 March 2012.

Clause 7.20 of the 2012 LEP provides:

7.20 Development requiring preparation of a development control plan

(1) This clause applies to any of the following development:

(a) development for the purposes of a new building,

(b) development that increases the gross floor area of an existing building.

(2) Development consent must not be granted to development to which this clause applies on the following land unless a development control plan that provides for the matters in subclause (4) has been prepared for the land:

(a) land in Central Sydney, if the site area for the development is more than 1,500 square metres or if the development will result in a building with a height greater than 55 metres above ground level (existing),

(b) land (other than land in Central Sydney or in Zone IN1 General Industrial), if the site area for the development is more than 5,000 square metres or if the development will result in a building with a height greater than 25 metres above ground level (existing).

(3) A development control plan is not required to be prepared if the consent authority is satisfied that such a plan would be unreasonable or unnecessary in the circumstances or that the development:

(a) involves only alterations or additions to an existing building, and

(b) does not significantly increase the height or gross floor area of the building, and

(c) does not have significant adverse impacts on adjoining buildings or the public domain, and

(d) does not significantly alter any aspect of the building when viewed from public places.

(4) The development control plan must provide for all of the following:

(a) requirements as to the form and external appearance of proposed development so as to improve the quality and amenity of the public domain,

(b) requirements to minimise the detrimental impact of proposed development on view corridors,

(c) how proposed development addresses the following matters:

(i) the suitability of the land for development,

(ii) the existing and proposed uses and use mix,

(iii) any heritage issues and streetscape constraints,

(iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,

(v) the bulk, massing and modulation of buildings,

(vi) street frontage heights,

(vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity,

(viii) the achievement of the principles of ecologically sustainable development,

(ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network,

(x) the impact on, and any proposed improvements to, the public domain,

(xi) the impact on any special character area,

(xii) achieving appropriate interface at ground level between the building and the public domain,

(xiii) the excellence and integration of landscape design,

(xiv) the incorporation of high quality public art into the fabric of buildings in the public domain or in other areas to which the public has access.

Note. Section 83C of the Environmental Planning and Assessment Act 1979 provides that if an environmental planning instrument requires the preparation of a development control plan before any particular or kind of development is carried out on any land, that obligation may be satisfied by the making and approval of a staged development application in respect of that land.

30. Section 83C of the Act provides:

83C Staged development applications as alternative to dcp required by environmental planning instruments

(1) An environmental planning instrument cannot require the making of a staged development application before development is carried out.

(2) However, if an environmental planning instrument requires the preparation of a development control plan before any particular or kind of development is carried out on any land, that obligation may be satisfied by the making and approval of a staged development application in respect of that land.

Note. Section 74D (5) also authorises the making of a development application where the relevant planning authority refuses to make, or delays making, a development control plan.

(3) Any such staged development application is to contain the information required to be included in the development control plan by the environmental planning instrument or the regulations.

31. The Sydney Development Control Plan 2012 (the 2012 DCP) applies to the site. The purpose of the 2012 DCP (section 1.1) is to supplement the 2012 LEP and “provide more detailed provisions to guide development”. Section 2 provides locality statements and supporting principles, including for Section 2.1 Central Sydney. The site is located in the Macquarie Street Special Character Area (SCA) (section 2.1.6), described in the following terms:

Macquarie Street contains a collection of highly significant buildings dating from the early 19th century to the late 20th century. Originally a government precinct, it has expanded to embrace first residential, professional, then commercial and tourism uses.

Macquarie Street forms the eastern built edge of the City Centre. It is characterised by two distinct sides: its western built edge consists of medium scale buildings, stepping up to the city high rise beyond, creating a prominent city skyline when viewed from the Botanic Gardens; while the eastern edge includes the Botanic Gardens and to the south a cohesive rare group of public buildings of national significance, that terminate east-west streets and create significant vistas, particularly from Martin Place.

Macquarie Street is an important civic street providing a vista terminated to the south by Hyde Park, with views north to the Opera House.

32. The Macquarie Street SCA is shown as Area “G” on the Special Character Areas Map Retail Premises Map – Sheet CL2_014 in the 2012 LEP. Area G extends on the western side of Macquarie Street south from the Cahill Expressway to King Street, and on its eastern side south from Bent Street/Shakespeare Place at the State Library to The Mint building. The SCA includes the buildings fronting Macquarie Street on its western side, and for the area south of Shakespeare Place on the eastern side, the buildings between Macquarie Street and Hospital Road, including Parliament House and Sydney Hospital.

33. The principles applicable to the Macquarie Street SCA are:

(a) Development must achieve and satisfy the outcomes expressed in the character statement and supporting principles.

(b) Recognise Macquarie Street as one of Sydney’s pre-eminent public spaces flanked by heritage items which house activities of State and national significance.

(c) Protect and extend mid-winter lunchtime sun access to Hyde Park, the Royal Botanic Gardens and the Domain.

(d) Improve and enhance the public domain and pedestrian amenity of the street and promote its image as a grand and civic boulevard.

(e) Maintain and reinforce the urban character and scale of Macquarie Street and sense of built edge definition to the western side of the Royal Botanic Gardens by requiring new buildings to:

i. be built to the street alignment; and

ii. have street frontage heights and building setbacks above street frontage heights, consistent with the prevailing scale, form and character of buildings nearby.

(f) Emphasise Macquarie Street as the eastern built edge of the City and maintain the stepped building form from it westwards towards the north-south ridge of the City centre.

(g) Maintain and enhance existing views and vistas to the harbour and Opera House to the north and Hyde Park to the south.

(h) Conserve and enhance the heritage significance of the area including the nineteenth and twentieth century public, institutional, religious and commercial buildings and their settings.

(i) Ensure new development is designed and sited to protect the heritage significance of heritage items within the area, with special consideration given to heritage curtilage of heritage items established by an approved Conservation Management Plan.

34. Section 3.3 of the 2012 DCP provides for Design Excellence and Competitive Design Processes, and states that the provisions in section 3.3 complement cl 6.21 of the 2012 LEP and are to be read in conjunction with the City of Sydney Competitive Design Policy and the Model Competitive Processes Brief. The objectives are:

(a) Ensure high quality and varied design through the use of competitive design processes for large and prominent developments.

(b) Ensure development individually and collectively contributes to the architectural and overall urban design quality of the local government area.

(c) Encourage variety in architectural design and character across large developments to provide a fine grain which enriches and enlivens the City’s public realm.

35. Section 3.3.1 and 3.3.2 provide for the competitive design process and Design Excellence Strategy, and sections 3.3.3-3.3.6 for awarding of additional height or floor space.

36. Section 3.3.8 states that a site specific development control plan or a Stage 1 development application required under cl 7.20 of the 2012 LEP must address the issues set out in clauses 7.20(4) and 6.21 of the 2012 LEP. The documentation required as part of a site specific development control application is specified in 3.3.8(1):

(a) Site, context and development options analysis;

(b) Public domain layout including levels, uses, access and circulation and dedications;

(c) Built form massing and dimensioned envelopes;

(d) Distribution of uses and floor space areas;

(e) Overshadowing analysis;

(f) Stormwater management strategy;

(g) Traffic management and servicing strategy and parking numbers and location;

(h) Ecologically sustainable development strategies and benchmark commitments (including connection to green infrastructure);

(i) Heritage impact statement;

(j) Design excellence strategy;

(k) Landscape concept plan;

(l) Public art strategy; and a

(m) Staging plan.

37. Section 3.9 Heritage has the following objectives:

(a) Ensure that heritage significance is considered for heritage items, development within heritage conservation areas, and development affecting archaeological sites and places of Aboriginal heritage significance.

(b) Enhance the character and heritage significance of heritage items and heritage conservation areas and ensure that infill development is designed to respond positively to the heritage character of adjoining and nearby buildings and features of the public domain.

38. Section 3.9.2 provides for Conservation Management Plans, and section 3.9.5 for development affecting a heritage item.

39. Section 4.2 of the 2012 DCP includes provisions for building height and form (section 4.2.1), and amenity, including private open space and balconies (4.2.3.7), and outlook (4.2.3.10).

40. Other relevant provisions of the 2012 DCP include section 5.1.2 (Building setbacks), and section 5.1.3 (Street frontage heights and setbacks for Special Character Areas).

41. State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) applies, and cl 30 requires consideration of design quality when evaluated in accordance with the design quality principles in cll 7-18, and the Residential Flat Design Code (RFDC). Section 4.2 of the 2012 DCP provides objectives and provisions for residential flat, commercial and mixed use developments, and states that in the event of an inconsistency between the RFDC and a provision in the DCP, the DCP will prevail.

The contentions

Council’s contentions

42. The Council’s contentions as identified in its Amended Statement of Facts and Contention (Ex C1) are:

1. requirement to prepare a site specific development control plan (site specific DCP): preparation of a site specific DCP or Stage 1 DA would have established appropriate parameters for the development and insufficient justification has been provided to demonstrate that preparation of a site specific DCP or Stage 1 DA would be unreasonable or unnecessary;

1. non-compliance with the site specific setback above street frontage control for Macquarie Street (10m);

2. non-compliance with the site specific setback above street frontage height control for Albert Street (8m);

3. non-compliance with side (southern) and rear (western) setback requirements;

4. adverse impacts on the heritage significance, setting, character and views of the heritage item on the site, heritage items in the vicinity of the site, and the local, state and national significance of the site and the locality;

5. non-compliance with solar access requirements for residential apartments;

6. non-compliance with private open space requirements for residential apartments;

7. proposal does not exhibit design excellence and is not entitled to additional 10% building height, and does not comply with 55m building height requirement;

8. proposal not in the public interest as it has not properly applied the applicable planning controls, and for the matters raised in submissions;

9. insufficient information [addressed]; and

10. non-compliance with height of building development standard.

43. In submissions the Council expressed the issues requiring resolution in the form of four questions:

1. Having regard to the urban and historical context and the planning controls, including design excellence, does the proposal fit?

2. Does the proposal cause unacceptable impact?

3. Is the resulting amenity of the apartments acceptable?

4. Has the process undertaken enabled the consent authority to be satisfied that the best possible outcome has been achieved?

44. The Council submits that the answer to those questions is no, yes, no and no. In summary, the Council’s position is that a site specific development control plan or Stage 1 DA is required; the proposal pays insufficient respect to the heritage item on the site and the street in the size, form , location and height of the building; there is no reason not to comply with the height control; and the internal amenity is inadequate.

Mulpha’s contentions

45. In its Statement of Facts and Contentions (Ex M1) Mulpha raised the following contentions in addition to those raised by the Council:

1. non-compliance with the 30m setback above the nominated street frontage height control for Macquarie Street;

2. non-compliance with the 30m setback above nominated street frontage height control for Albert Street;

3. view loss impact on the Intercontinental Hotel as a consequence of non-compliance with 30m setback control;

4. heritage impacts; and

5. urban design: inadequate communal open space and pedestrian through-site link.

46. Mulpha submits that the proposed development is contrary to the applicable planning controls and the planning merits. On the former, Mulpha submits that on a proper construction of the 2012 LEP competitive design procedures and the 2012 DCP setback controls:

1. the proposed building has not been the subject of a competitive design process as defined in the 2012 LEP and carried out by reference to the currently applicable controls and a site specific development control plan as required by the 2012 LEP and for that reason cannot be found to exhibit design excellence;

2. the proposal requires a development control plan to identify the appropriate use and mix of uses for the site and to set the planning controls and development standards applying to the site; and

3. the 2012 DCP does not permit a tower development on the site, instead requiring setback to the street frontage height of Transport House across the whole site with the possible exception of above the former Health Department building which may require the street frontage setback height to be the lower height of that existing heritage building.

47. On the merits, Mulpha submits that the tower is inappropriate; the privacy impacts on Transport House are unacceptable; the impacts on heritage are such that the proposal is out of place in the northern end of Macquarie Street; there is an impact on views for 52 rooms in the Intercontinental Hotel, being 3 or 4 rooms on levels 11 to 23, which can be described as severe; and the proposed development is deficient in private open space and solar access.

Evidence

Objector evidence and the view

48. The development application was publicly notified between 8 January 2014 and 8 February 2014, and 20 submissions were made to the Council. Following the amendment of the development application, the Council notified those who had previously made submissions, and received 11 submissions. Copies of all the submissions received in response to the first notification, including those received after the close of the official notification period, were forwarded to the Heritage Council on 5 June 2014. The Council forwarded to the Heritage Council copies of the submissions received in response to the amended scheme on 11 August 2014.

49. Copies of those submissions are in evidence (Ex C3). The submissions included submissions by, and on behalf of, residents of The Astor; by, and on behalf of, residents of Quay Apartments; on behalf of Save Circular Quay Inc; by The Royal Botanic Gardens and Domain Trust, the National Trust, Emeritus Professor Peter Webber, and the Australia ICOMOS Secretariat; and on behalf of Mulpha. The submissions are comprehensive and detailed.

50. In summary, the submissions raise objections concerning impacts on listed heritage items and the heritage townscape, bulk and scale, impacts on the streetscape and on neighbouring properties and the urban form in the precinct, and the impact of the high tower on the character of the area. The submissions on behalf of The Astor raise additional concerns as to loss of views on the western side of the building, loss of public car parking, loss of the hotel as a facility for visitors to Sydney and for the residents of The Astor, loss of the view from the rooftop garden, and loss of sunlight. The submissions by and on behalf of Quay Apartments raise concerns as to breaches of the planning controls, wind impact, loss of views, and the ability of Albert Street to cope with increased traffic. Save Circular Quay Inc raise concerns as to the suitability of the site for a tower development, the reduction in setbacks, traffic, heritage and design impacts, and privacy. Professor Webber raises concerns as to adverse impacts on the streetscape, on neighbouring properties and on heritage items, and on the urban form in this important precinct. The National Trust objects to the dominance of the high tower and its minimal setbacks, and change to the character of the area. Australian ICOMOS states concern for the impacts on the heritage townscape and inappropriate precedent for tall buildings, and impacts on state and national heritage significance of the area. Mulpha’s submission raises objections to reduced setbacks, loss of views from the Intercontinental Hotel, and lack of justification for waiving the requirement for a Stage 1 DA or site specific development control plan.

51. On the second day of the hearing the Court, and the parties’ legal representatives and experts, had a view. The view commenced on Macquarie Street opposite the site, where submissions were made by Mr John Freeman, resident of The Astor; Ms Sonia Fenton, on behalf of Save Circular Quay Inc; and Professor Peter Webber. The view continued to the roof terrace of The Astor, and units 1 and 2 on level 10. Ms Valerie Gregg and Mr Geoff Bray made submissions. The view then continued to unit 1901 of the Quay Apartments, where Mr Richard Owens made submissions. The view included the corner of Albert and Phillip Streets, Albert Street to Macquarie Street, up Macquarie Street past Transport House to the corner with the Cahill Expressway and the Botanic Gardens, the corner of Macquarie Street and Bridge Street, and along Bridge Street to the Intercontinental Hotel. The view of the hotel included room 26 on each of levels 18, 19 and 22. The view continued to level 6 Transport House on its northern side adjoining the site, and then south along Macquarie Street to No 60 Martin Place. The final part of the view was a view of the City of Sydney model at Town Hall.

52. Agreed notes of the submissions made on the view by objectors are in evidence (Ex C15). Those submissions restate and amplify many of the objections in the written submissions made to the Council, and include objections relating to the height and bulk of the tower, inadequate setbacks, loss of the hotel and the public car parking, non-compliance with the planning controls, inappropriateness of the building form, impact on outlook and views from shared rooftop area of The Astor, impact on sunlight and views from The Astor units, impact on streetscape, increase in traffic, and impact on views and privacy for Quay Apartments.

53. Ms Briony Mitchell, planner, made written submissions to the Council on behalf of residents of Quay Apartments, and Save Circular Quay Inc, and gave oral evidence in court on the third day of the hearing as to impacts on privacy, views and heritage, and the bulk and scale of the proposal, and that a tower would be inappropriate if the 30m setback control were applied.

Expert evidence

54. Expert evidence on heritage issues was provided by Mr Brian McDonald (on behalf of Stamford), Mr Otto Cserhalmi (on behalf of the Council), and Mr Alan Croker (on behalf of Mulpha). Each expert provided an individual Statement of Evidence (exhibits F, C6 and M8). The experts conferenced and provided a joint report (Ex C12), and gave oral evidence.

55. Expert evidence on planning issues was provided by Mr Giovanni Cirillo (on behalf of Stamford), Ms Sandra Robinson (on behalf of the Council) and Mr Robert Chambers (on behalf of Mulpha). Each expert provided an individual Statement of Evidence (exhibits E, C5 and M7). Expert evidence on urban design issues was provided by Mr Michael Harrison (on behalf of Stamford), Mr Tim Williams (on behalf of the Council), and Ms Gabrielle Morrish (on behalf of Mulpha). Each expert provided an individual Statement of Evidence (exhibits D, C7 and M5). Mr Harrison provided an individual Statement of Evidence addressing the Council’s contention 11 Height (Ex G). Dr Richard Lamb provided expert evidence on visual impact on behalf of Mulpha, and provided a Statement of Evidence (Ex M6).

56. The planning, urban design and visual impact experts conferenced, and provided the following joint reports:

• exhibit C9: joint report on Council’s contention 11, building height (Mr Harrison, Ms Robinson, and Mr Chambers);

• exhibit C10: joint report on planning issues raised in Council’s contentions 1, 2, 3, 4, 5, 9 and 11 (Mr Chambers, Mr Cirillo and Ms Robinson); and on planning issues raised in Mulpha’s contentions: (Mr Chambers and Mr Cirillo); and

• exhibit C11: joint report on urban design, view impacts and amenity (Mr Harrison, Mr Williams, Ms Robinson, Ms Morrish and Dr Lamb). In this report all five experts discussed the Macquarie Street context and setbacks, the Albert Street context and setbacks, and design excellence; Mr Harrison, Ms Morrish, Ms Robinson and Mr Williams discussed the relationship to Transport House and the relationship to the former Health Department building; Mr Harrison, Ms Robinson and Mr Williams discussed the relationship to Quay Apartments; Mr Harrison, Ms Morrish and Ms Robinson discussed solar access and amenity, private open space, communal open space, and the through site link; Mr Harrison, Ms Robinson, Mr Williams and Dr Lamb discussed view loss; and Mr Harrison, Ms Morrish and Dr Lamb discussed the 2012 DCP Special Character Area controls.

57. The planning, urban design and visual impact experts, other than Mr Chambers, were present at the view and gave oral evidence in court. Mr Chambers provided a written opening statement (Ex M13).

58. Photomontages were provided by Mr Tai Ropiha on behalf of Stamford, and Mr Lipco Trajcevski on behalf of the Council (exhibits H and C8). There was no dispute as to the technical accuracy of the photomontages and compliance with the Court’s practice direction. The Court was provided with photographs taken of the City of Sydney model on the view by Mr McDonald (Ex M), and photographs of the City of Sydney model taken with the present structures, and with the development as proposed (Ex C14).

59. The Council’s contentions included a contention (contention 10) that insufficient information had been provided in relation to finished floor to floor heights, and on acoustic issues. Mr Ropiha provided a report on floor to floor heights (Ex K), and Mr Tom Candalepas provided an expert report on acoustic issues (Ex J). The Council confirmed its position that this contention has been addressed.

Consideration

60. The Council contends that consent cannot be granted because a site specific development control plan (site specific DCP), or a Stage 1 DA, is first required pursuant to cl 7.20(2) of the 2012 LEP, and that it has not been demonstrated that preparation of a site specific development control plan or Stage 1 DA would be unreasonable or unnecessary in the circumstances.

61. For the reasons which follow, we are not satisfied that cl 7.20(2) is met or that a development control plan addressing the matters required by cl 7.20(4) (or a Stage 1 DA) is unreasonable or unnecessary in the circumstances, and on that basis, consent to the proposed development cannot be granted. We are of the view that there are several matters which require resolution in the form of a development control plan or Stage 1 DA. The following reasons explain why we have reached the conclusion that cl 7.20(2) precludes the granting of development consent, and address the matters raised in the other contentions to the extent necessary to provide a basis for that conclusion.

Whether a site specific DCP, or a Stage 1 DA, is required

62. It was common ground that the site area and proposed height of the development fall within cl 7.20(2) of the LEP, and that development consent must not be granted “unless a development control plan that provides for the matters in subclause (4) has been prepared for the land”, unless cl 7.20(3) applies. As noted above, s 83C of the Act would permit the making and approval of a staged development application, containing the information required to be included in the development control plan, as an alternative to a development control plan.

63. In the discussion which follows, we refer to a “site specific development control plan” or “site specific DCP”, to encompass both the development control plan specified in cl 7.20(2) and the alternative staged development application permitted by s 83C of the Act (referred to in the evidence and submissions as a Stage 1 DA).

64. The Council contends that there is no site specific DCP for the site, nor is there a Stage 1 DA which would be permitted by s 83C of the Act as an alternative. Preparation of a site specific DCP, or the preparation and lodgement of a Stage 1 DA, would have established the appropriate parameters for future redevelopment of the site in accordance with cl 7.20(4)(a)-(c) of the LEP and the DCP, and addressed many of the built form, setback and heritage issues; and insufficient justification has been provided to demonstrate that the preparation of a site specific DCP or Stage 1 DA would be unreasonable or unnecessary in the circumstances. The dispensation power in cl 7.20(3) should be considered in light of the identified circumstances where a development control plan is not required in subclause (3), which are where there is only a minor development involved.

65. It is also pertinent in considering subclause (3) to consider the relevant provisions of the 2012 DCP including the obligation under cl 3.3.8 to prepare and consider alternate designs. The competitive design process is not a substitute for the requirements of cl 7.20 and the site specific DCP, and is a separate and independent obligation as part of a process whereby the CSPC makes a determination, and not a competition jury. The Council submits that without a site specific DCP it cannot be established that the proposed development is the best possible outcome consistent with the objectives of cl 6.21(1). The provisions of the 2012 DCP cannot be regarded as meeting the requirements for a site specific DCP as the 2012 LEP and 2012 DCP were a package of planning documents, and the content of the DCP was known at the time the 2012 LEP was made, so the reference in cl 7.20 to a “development control plan” cannot be a reference to the 2012 DCP.

66. Stamford submits that the preparation of a site specific DCP is unreasonable or unnecessary pursuant to cl 7.20(3) given the particular circumstances of the case, the site specific provisions in the 2012 DCP, and the history of the proposal. In particular there are detailed provisions in relation to the site provided within the 2012 DCP in relation to the Macquarie Street SCA as well as street frontage heights and setbacks. At the time of drafting of the 2012 DCP Council officers envisaged that the detailed provisions of the 2012 DCP could provide a basis in certain circumstances for the consent authority forming a view that a site specific DCP was unreasonable or unnecessary, as demonstrated in a report to the CSPC dated 8 March 2012 prepared following exhibition of the draft DCP which referred to detailed provisions for Epsom Park and noting that, unless an applicant proposed a substantially different scheme to that envisaged in the DCP, the requirement for a site specific DCP could be waived (Ex C, tab 12).

67. Stamford also relied on a letter dated 30 March 2010 from the Council’s Director City Planning and Regulatory Services to Stamford’s representative in which he stated that, provided an appropriate design excellence process was completed, a design solution achieving the highest design excellence was selected, and a subsequent DA was lodged complete in detail and resolution, a recommendation would be made that a Stage 1 DA be waived; all requirements which Stamford submits were complied with.

68. Stamford relies on:

• the justification provided with the 2013 DA as to why a Stage 1 DA/site specific DCP was not reasonable or necessary in the circumstances, which included the requirement in the Brief for Competitive Process–Design Alternatives (November 2010) that cl 25(3) of the Sydney Local Environmental Plan 2005 (the 2005 LEP) be addressed in any design, and those requirements are substantially similar to the requirements of cl 7.20(4);

• the Competitive Design Alternatives Report (May 2011), which states that the design of the winning scheme is consistent with the provisions of the then draft LEP 2011 in addressing the heritage issues and streetscape constraints, the bulk, massing and modulation of the building, the street frontage heights, the pedestrian, cycle, vehicular and service access and circulation requirements, the impact on the special character area, and the principles of ESD, all matters expressly referred to in cl 7.20(4); and

• the outcome of the competitive design alternatives process, which was that of the three fully documented design alternatives submitted a winning scheme was chosen by the selection committee which is substantially the same as the proposed development.

69. Mulpha submits that cl 7.20(2)(a) dovetails with cl 6.21(5)(c) of the LEP which makes the requirement for a site specific DCP a trigger for the need for a competitive design process. This scheme of the 2012 LEP is antithetical to Stamford’s assertion relying on the design of the proposed development, and avoiding the proper process in the 2012 LEP cannot be justified by that assertion. A site specific DCP would need to be publicly exhibited, allowing public submissions and participation on matters such as the suitable use and mix of uses for the site as well as suitable planning controls for the site with more detail than those in the 2012 LEP and 2012 DCP.

70. Mulpha submits that the 30 March 2010 letter from the Director City Planning and Regulatory Services cannot be relevant to the application of cl 7.20 of the LEP to the present application lodged in December 2013, as it was written before cl 7.20 came into effect. The 2012 DCP cannot be regarded as a site specific DCP as at a minimum it does not address all the matters provided in cl 7.20(4). The question of whether a site specific DCP is unreasonable or unnecessary must be considered in the context of whether there are other controls addressing the matters in cl 7.20(4) and is not a matter to be considered at large, and as the DCP does not address a number of those matters it cannot be properly said that the preparation of a site specific DCP is unreasonable or unnecessary. Mulpha submits that the 2012 DCP does not address all those matters, and further, that the fact that there is significant disagreement as to the interpretation of the subject controls is in itself a reason for preparing a site specific DCP in the public interest. The only matter which the DCP addresses specific to the site is the setback – all the others are essentially general; and even that provision which is specific has a construction issue. The clarification of the setback requirements applying to the site would be a significant and substantive benefit deriving from the site specific DCP process. A site specific DCP would give guidance on height, if there is to be a tower; and could provide a series of setbacks for different levels.

69. In reply Stamford submits that cl 6.21(5), requiring a competitive design process for development for which the applicant has chosen such a process, has nothing to do with cl 7.20(2). Public participation is hardly relevant where there has been exhibition of the 2013 DA; and the 2013 DA being one for the specific development, permits of the consideration of a far greater number of matters than a development control plan would have, as matters such as solar access, private open space and privacy would likely be deferred in a development control plan-making process. In so far as alternatives are concerned, that requirement is in the DCP and not in cl 7.20, and in any case, the competitive design process undertaken produced three alternatives, all of which were lodged with the 2013 DA and are before the Court.

70. As part of its amended DA, Stamford made a formal submission in Section 6.0 of its Supplementary Planning Report dated 1 July 2014 requesting that the consent authority waive the requirements of cl 7.20(2) on the basis that compliance would be unreasonable or unnecessary, pursuant to cl 7.20(3) of the 2012 LEP (Ex A vol 4, tab C 105-114). In summary, the request identified as relevant background the 30 March 2010 letter from the Council Director City Planning Development and Transport which stated that having regard to the circumstances of the site and provided that an appropriate design excellence process was completed, and a design solution achieving the highest design excellence was selected, and a subsequent DA was lodged complete in detail and resolution, a recommendation would be made to the CSPC that a Stage 1 DA be waived. Stamford also relied on the design excellence process already undertaken; and the brief for the design alternatives process. The request submitted that a development control plan would be unreasonable or unnecessary in the circumstances because:

1. the 2012 LEP and 2012 DCP provide sufficient guidance for the future development of the site;

2. the complex circumstances of the site require a unique design response at the level of detail required at a Stage 2 DA;

3. the site’s constraints, including the sun access plane and the response to the heritage item, mean that there are limited ways to develop the site;

4. the proposed development is generally consistent with the primary controls for the site, being land use, FSR, height, and the sun access plane;

5. the proposal is the result of an alternatives process and satisfies all the aspects of a design alternatives process;

6. the proposed non-compliances can be demonstrated to largely have a positive or neutral impact;

7. the proposed development has been considered by the Design Advisory Panel and considered to be a ‘skilful’ design outcome for the site;

8. the proposed building envelope is irregular; and

9. the current DA satisfies the criteria of the 2010 letter from Council.

73. At pp 109-113 Stamford’s Supplementary Planning Report identified how each of the issues as provided in cl 7.20(4)(a)-(c) had been addressed as part of the competitive design process and development application, and at p 114 it concluded:

517. It is unlikely that a development control plan or Stage 1 DA would result in a better outcome for any of the aspects listed under Clause 7.20(4) and addressed above….

The expert evidence

74. The experts disagreed as to whether preparation of a site specific DCP or a Stage 1 DA would be unreasonable or unnecessary. Mr Cirillo and Mr Harrison were of the opinion that it would be unreasonable or unnecessary in this instance, while Ms Robinson and Mr Chambers disagreed.

75. Mr Harrison addressed the Council’s contention 1 in his individual expert report (Ex D). He disagreed that a Stage 1 DA would have resulted in a better outcome for the site, because:

• all of the competition entries resulted in schemes with a similar massing;

• the architects (with advice from their heritage consultants) have a good understanding of the site and its context and have balanced many competing objectives;

• the 2012 LEP and 2012 DCP provide sufficient guidance for future development of the site with clear and comprehensive controls;

• the complex circumstances of the site require that a unique design response is needed at the level of detail required at a Stage 2 DA;

• the site’s constraints including the sun access plane and the response to the heritage item mean that there are limited ways to develop the site; the proposed development is generally consistent with the primary controls for the site;

• the proposal is the result of a design alternatives process;

• the proposed non-compliances largely have a positive or neutral impact and it is unlikely that a Stage 1 DA or site specific DCP would have produced a better result in regard to the non-compliances;

• the proposed development was considered by the DAP to be a “skilful” design outcome for the site;

• a Stage 1 DA process may not have provided certainty as to the workability of the proposed massing given the site’s unique constraints and context, or have enabled a design to be prepared to a sufficiently advanced state to respond to the site’s constraints; and

• it would be inappropriate to approve a mid-rise tower form on the site without understanding the detail of how that tower was to be resolved.

• In his opinion the competition brief and competitive design process was the best process for the complicated site and was an appropriate replacement of the need for a Stage 1 DA.

76. Mr Cirillo, Ms Robinson and Mr Chambers addressed the Council’s contention in their individual statements of evidence, and in their joint report (Ex C10). They agreed that the site is subject to cl 7.20; that section 6.0 of the 2012 DCP comprises site specific DCP controls and the site is not addressed in section 6.0; that the 8m/10m setback controls were not the subject of an exhibited draft DCP prior to adoption of DCP 2012; that a site specific DCP could have determined unambiguous setback above street frontage controls for the site; and that towers in the vicinity are not located in the Macquarie Street SCA.

77. Mr Chambers and Ms Robinson did not consider that the requirement to prepare a site specific DCP is unreasonable or unnecessary in this instance. In their opinion, if a site specific DCP had been prepared for the site, it could have established the following matters before Stamford embarked on a detailed design (Ex 10, p 4):

• an appropriate building envelope (podium, street frontage height, setback above street frontage height, heritage curtilage, side/rear setbacks, building height above street frontage height, building separation, etc);

• pedestrian access points and links;

• vehicular access points;

• land use mix;

• streetscape activation;

• design objectives;

• suitability of the 2012 DCP controls;

• contextual issues (heritage, view impact, streetscape, location of tall buildings, location of site within Macquarie Street SCA, boundary conditions and interface with neighbouring buildings, views from nearby buildings etc); and

• design excellence strategy, ie, an assessment of whether the site can accommodate up to an additional 10% height.

78. In their opinion, given the sensitive heritage context of the site, adjoining heritage items and the place of the site in the Macquarie Street SCA, there is an even greater need to prepare a site specific DCP for the site.

79. Ms Robinson considered that a site specific DCP would have resolved a number of specific issues, namely the determination of “ground level (existing)” and assessment of height non-compliance; whether the site could support additional height assuming that the 10% bonus was available; envelope options for the site having regard to heritage/streetscape/urban design concerns; and the appropriateness of a predominantly residential development on the site; and further, that in circumstances where the development departs from all the nominated site specific and general setback controls, a site specific DCP would have provided considerable utility.

80. Mr Chambers considered that a site specific DCP is reasonable and necessary, as a significant variation to the 30m setback control in the 2012 DCP should not be made without one. In his opinion it is not appropriate to avoid dealing with the apparent conflict in the interpretation of the relevant setback above street frontage height control other than by preparing a site specific DCP; and, even if a Stage 1 DA were prepared as an alternative to a site specific DCP, there would still be a need for an amendment to the 2012 DCP because of the significant and profound implications on the allowable built form of removal of a large part of the blue shading on Figure 5.15 which would warrant proper consultation with stakeholders.

81. Mr Cirillo disagreed. In his opinion the setback above street frontage and podium height controls in the 2012 DCP can serve the equivalent function of a site specific DCP. In this instance Stamford has lodged a single stage DA after the completion of a competitive design process in accordance with a detailed process agreed specifically with the Council in the terms of the letter of 30 March 2010. The 2012 LEP and 2012 DCP provide site specific guidance for the future development of the site, and the recent and site specific controls provided in the 2012 DCP provide adequate information about the permissible building envelope, suitable uses on the site, and objectives for where non-compliances are to be argued on merit. The subject design alternatives process and DA have amalgamated and reconciled the design considerations of a typical two stage DA process. No additional “design excellence” benefit would necessarily have resulted from a fragmented DA process or the preparation of a further development control plan, and in this case greater certainty has been provided of achieving “design excellence” through a comprehensive and fully documented single stage DA. The complexity of the site warrants a single DA assessment process as a way of reconciling envelope configuration, heritage constraints and apartment design simultaneously.

82. Mr Cirillo and Ms Robinson maintained their opinions in their oral evidence on this issue. In his written opening statement (Ex M13) Mr Chambers also maintained his position, commenting that if Stamford had complied with the requirement for a site specific DCP fundamental site planning and contextual matters such as bulk, scale, height, and front, rear and side setbacks would have been resolved as part of a thorough, logical and transparent process which considered options and alternatives to achieve the best possible outcome.

The competitive design process

83. A significant element in Stamford’s argument as to why a site specific DCP is not needed is the competitive design process undertaken in 2010 and 2011. It is necessary to consider that process and its outcomes in some detail, by reference to the controls and policies applicable at the time the process was undertaken, and the present controls and policies.

84. A summary of the competitive design process is provided in Mr Harrison’s statement of evidence (Ex D, pp 127- 129). The Council advised at the pre-DA lodgement meeting for the 2011 DA held on 16 March 2010 that a design competition or preparation of design alternatives on a competitive basis would be required for the site (Statement of Environmental Effects, p 12; Ex A vol 1; Ex C, tab 7 p 227). Mr Harrison notes that the competition comprised an “invited” competitive process whereby alternative designs were considered, and Choi Ropiha Fighera (now CHROFI) was one of the three entrants invited to the process.

85. The Brief for Competitive Process – Design Alternatives (the Brief) (Attachment 1 to Tab C, Ex A vol 4; Ex C3 tab 6) was prepared by JBA on behalf of Stamford. The purpose of the competitive process was stated to be “to select a high quality architectural and urban design solution” for the redevelopment of the site (p1). One of the six specific aims of the process was “to contribute a building sympathetic to the Macquarie Street streetscape whilst being imaginative, contemporary and appropriate”; another aim was to assist the development approval process by addressing all issues including demonstration of design excellence (p1).

86. Other salient aspects of the Brief were as follows

1. it notes that Macquarie Street is listed as a Special Area in the 2005 LEP and includes the character statement for the Area (pp3-4). It also includes a Heritage Context section which notes that the site is surrounded by a number of significant heritage buildings and features and lists the objectives for the Special Area (p4). Reference materials provided to competitors included a Heritage Design Detail Report prepared by Graham Brooks and Associates (p5);

2. an objective for the process was identified as “to achieve general consistency with the relevant planning instruments, within the commercial and design excellence objectives of the brief”, including the 2005 LEP, the 1996 DCP, SEPP 65 and the RFDC (p7);

3. entrants were asked to consider whether a lower street frontage height than the minimum 35m and maximum 45m stipulated in the 1996 DCP would be a better design response matching the adjoining heritage item;

4. the Brief noted that a 30m above street frontage setback applied, and stated that “if strictly applied this would render the site undevelopable above street frontage height”, and “any appropriate above street frontage setback will need to be argued on merit” (p7);

5. a key objective of the process was to achieve a 10% bonus above the 55m height limit, but there was to be no exceedance of the sun access plane (p7);

6. any instances of non-compliance had to be identified and justified against the objectives of the planning controls (p8);

7. designs were to have regard to design advice provided to Stamford in meetings with Council officers, including that the podium building along Macquarie Street should match the street wall height of the heritage building adjacent, and that an appropriate setback to the tower building from the podium building was required (p9); and the Council would expect SEPP 65 and the RFDC to be complied with (p10); and

8. Stamford had negotiated an easement on the western boundary to address Council's residential setback requirements (p8).

87. The Brief included a number of considerations for the competitive process and for the detailed DA design arising from design objectives provided by the Council. The former included “an appropriate setback to the tower building from the podium building” (p 9), and the latter, that “all matters under cl 25(3) of SLEP 2005 are to be addressed” (p 10).

88. The Brief noted that the competitive process would be overseen by an impartial observer appointed by the Council (p11); a committee would select the preferred design; and that the decision of the developer would not fetter the discretion of the consent authority in its determination of any subsequent development application (p13).

89. The Brief was considered by the Council in draft form and generally endorsed, with suggested amendments, and the final brief was endorsed by the Council in November 2010 (Ex C3, p 1127).

90. At the end of the process, and also in accordance with the Brief, Stamford’s planning consultants (JBA) produced a Competitive Design Alternatives Report (May 2011) (Ex A vol 2, tab F) detailing the design alternatives considered and overviewing each design. The designs varied significantly in appearance but all three contained a tower element. We note that the evidence before the Court does not specify the extent of setbacks proposed for each design. The Selection Committee comprised three members, selected by Stamford (pp1-2). Factors considered by the Selection Committee in assessing each of the alternative designs included the requirements of the Brief to address commercial objectives, planning objectives and controls, and design features. Design features commented on by the Selection Committee included: setbacks to the former Health Department building, podium height on Macquarie Street, setback variation implications, and height control compliance.

91. It is evident from the Competitive Design Alternatives Report that while the focus of the Selection Committee was on the building itself in terms of its design features, capitalisation on views, cost and marketability, there was some focus on its locational context in terms of the adjacent heritage items and Macquarie Street streetscape.

92. In terms of the winning CHROFI design, which Stamford argues is substantially the same design for which approval is now sought, changes to it made at the suggestion of the Selection Committee during the competitive design process resulted in a revised scheme which the Committee considered was “more in keeping with the context of Macquarie Street, and is more sympathetic to surrounding heritage items” (p13). The revised scheme was also considered to be more respectful of the former Health Department building, particularly when viewed from Albert Street, providing “an appropriate setback to this building” (p13). Whilst further refinements to detail were suggested by the Selection Committee, the winning design was considered to be “the best, most dignified fit in response to the Macquarie Street context” (p14). In summary, the Committee considered that the winning design showed respect for the heritage streetscape and item on the site, demonstrated a “timeless quality and restrained elegance”, considered financial benefit by orientating apartments to views and having a relatively low construction cost, had greater exposure to Macquarie Street, and complied with the key planning controls for the site, particularly in terms of height and the sun access plane (p15).

93. The Competitive Design Alternatives Report concluded that the winning design displayed design excellence as then defined by cl. 26 of the 2005 LEP, in particular having a high standard of architectural design with materials and detailing appropriate to the building type and location, integrating with the heritage streetscape of Macquarie Street; a form that would improve the public domain around the former Health Department building; and that would not detrimentally impact on view corridors identified in the relevant development control plan (p15). The report also commented on compliance with clause 6.21 (4)(d) of then draft LEP 2011 (now reflected in the 2012 LEP) stating the winning design addressed the relevant considerations of that clause in terms of heritage issues, streetscape constraints, bulk, massing and modulation, street frontage heights, accessibility, impact on the special character area and principles of ecologically sustainable development (pp15-16). The report concluded that the winning design exhibited the design excellence required to achieve the 10% height bonus, and concluded (p16):

Based on the significant design excellence process undertaken to date, and the circumstances of the site (constrained by a height limit, sun access plane and setbacks) it is also requested that the [CSPC] support a formal waiver of a Stage 1 DA, and endorse the lodgement of a detailed design DA based on the Choi Ropiha Fighera scheme.

94. At the time the competitive design process was conducted the applicable local environmental plan was the 2005 LEP, and the provisions for demonstrating design excellence were contained in section 12 of the Central Sydney Development Control Plan 2006 (the 1996 DCP), including requirements for the conduct of an architectural design competition or competitive design alternatives. Those provisions were transferred to the Sydney Competitive Design Policy 2011, which was a standalone Policy exhibited with the draft LEP in 2010. As explained in the Council Planning Policy Sub-Committee report of 7 May 2012 (Ex C, p 30), that course was adopted because it was not considered appropriate for a local environmental plan to refer to a development control plan particularly when a development control plan may be amended from time to time in a process different to that applicable for a local environmental plan. That report also noted that the 2011 Competitive Design Policy was “a refinement of existing procedures relating to design integrity assessment”.

325. Ms Robinson estimated that only 22% of podium apartments will meet the 2 hours of sunlight requirement and 43% the ventilation requirements. This non-compliance was improved for the tower component with some 55% of tower units achieving the 2 hour sunlight and 75% ventilation requirements. In Ms Robinson's opinion, given the site's location and orientation, this degree of compliance when considered in conjunction with poor ventilation to a number of apartments is unreasonable and unacceptable, and would result in unacceptable levels of amenity.

326. Ms Robinson considered that solar access in compliance with the RFDC requirements could be met with a redesign and a reconsideration of the location of residential components of the development, as in her opinion there are significant failures in the amenity of the podium apartments, and that a slimmer tower which complied with the upper level front and rear setbacks required by the 2012 DCP would offer the potential for dual aspect apartments. Ms Morrish shared this view and considered that it should be possible, even with the site's constraints, to achieve a design that has 70% of units achieving 2 hours of solar access as required (Ex C11, p42).

327. Mr Harrison was of the opinion that more than 70% of units would achieve the 2 hours if the hours were extended from 8.30am to 3.30pm rather than from 9am to 3pm, and this relaxation has been applied to other developments. Furthermore, virtually all apartments have, in his opinion, excellent daylight access due to floor to ceiling glass usage on external walls and with no apartments having a southern aspect only, which is rare in the CBD, and with north, west and east facing apartments having a good to excellent outlook. He suggested that the Court could condition the consent to meet the solar access control by requiring shallower vertical blades but this would reduce the civic dignity of the building's presentation to Macquarie Street. Finally he provided examples of where the Council had required only around 50% of units to have the required 2 hours of solar access and he considered 50% to be an acceptable level of compliance on this site (Ex C11, p44).

Private Open Space

329. The urban design experts for the Council and Mulpha considered that the development does not comply with the private open space (POS) requirements of the 2012 DCP and the RFDC in terms of:

• the number of dwellings which have access to private open space (75% required, 45% provided);

• the dimensions of the open space (minimum area of 10m² required, between 6.4m² and 8.1m² provided); and

• the provision of Juliet balconies for some apartments (27.5% provided, 25% permitted), and whether these should be additional rather instead of private open space, where the suggested RFDC balcony minimum areas are 8m².

330. In Ms Robinson's calculation, only 11% of podium apartments have POS and none of the spaces comply, 71% of the tower apartments have POS but only up to 4% comply, and in total 44% of all apartments have complying POS and only 4% have complying balconies.

331. Stamford submitted that wintergardens and floor to ceiling windows with balustrading are proposed to meet the POS requirements, and are a commonly accepted alternative form of POS for CBD apartments. However, in Ms Robinson's calculation, even if wintergardens are considered acceptable, the total number of apartments with acceptable POS or balconies would still only be 44%. In her view, floor to ceiling windows with balustrades are not POS and should not be counted, and therefore 56% of apartments have no POS - and most of these are in the podium where amenity is already poor in terms of solar access and proximity to adjoining buildings. Mr Harrison was of the view that, if the Court accepted wintergardens as acceptable balconies or POS, a condition could be imposed requiring 70% of apartments to have wintergardens of at least 10m² as the apartments are large enough to accommodate such a condition.

Findings

332. There are a number of areas where Stamford seeks concessions or departures from 2012 DCP and/or RFDC controls on the basis of the overall design outcomes being achieved. Based on Mr Harrison’s evidence, there are some aspects on which amendments or appropriate conditions could be considered so as to achieve or more closely achieve compliance.

333. We are of the view that, whilst individually concessions may be warranted or substantiated, and the dispensations sought are as a result of the acknowledged constraints of the site, collectively they amount to a likely reduced amenity for future occupants of a number of the proposed apartments and require a more detailed analysis of amenity issues, and a more considered response in terms of the detailed design and land use mix proposed for the site. It is likely that most if not all of the amenity issues could be resolved in a proposal that is designed in response to a site specific DCP which considers a range of matters, including view impacts, and which is set back to meet the minimum upper level and rear setbacks of the DCP as it has been interpreted by the Council and Stamford.

View impacts

334. Mulpha contends that as a consequence of the non-compliance with the 30m setback above nominated street frontage height control, the proposed development will result in unreasonable view loss impacts from north facing rooms on levels 11-27 of the Intercontinental Hotel, with 52 rooms affected, on the evidence of Dr Lamb. A compliant development would retain views of the Opera House.

335. The Council would take no issue with view loss if the tower complied with the height limit and setback controls, and the view loss for The Astor and the Intercontinental Hotel would have to be accepted. However, the Council submits that the non-compliances eliminate important elements of the views to the west of the Opera House, the north pylon of the Harbour Bridge, and the views to the water.

336. The urban design experts agreed that, if the 2012 DCP requires a 30m upper level setback from Macquarie Street, and the proposed building complied, there would be no view impacts to adjacent buildings and that, if that setback is 10m as argued by the Council and Stamford, then the non-compliance with that setback would have only minor view impacts. The experts also agreed that there are significant differences in terms of view impacts depending on which height non-compliance determination is adopted (Ex C11,p36).

337. View loss was a concern raised by the Council but only in terms of public interest considerations, namely the concerns raised in objections and by residents of existing apartments in adjacent residential buildings, The Astor and Quay Apartments. The Council's position was that view loss was only an issue because of the development's non-compliance with various setback controls and the height control.

338. Both Ms Robinson and Mr Williams considered that these non-compliances have a real impact on views available from both The Astor and rooms in the Intercontinental Hotel, but not from Quay Apartments. Further that, simply because The Astor would continue to have significant easterly views would not justify the elimination of northerly views to Circular Quay from some apartments and the roof terrace of The Astor, which was a direct consequence of the building's non-compliances. In the Council's view, the clause 4.6 objection to non-compliances with the height does not address this issue, given the Council’s calculation of height and the consequent exceedance, and the different basis on which Stamford’s cl 4.6 objection was framed.

339. View loss impacts were raised by Mulpha in terms of impacts on certain rooms in the Intercontinental Hotel. It was Mulpha's contention that the non-compliances associated with the upper level setbacks (which they contended should be 30m) will result in unreasonable view loss from 36 north facing premium hotel rooms situated at Levels 11-27 of the hotel. The development therefore does not comply with the view sharing principles of Tenacity Consulting v Warringah Council [2004] NSWLEC 140 insofar as it impacts on the Intercontinental Hotel.

340. The experts agreed that even if the upper level street setbacks are as submitted by the Council and Stamford, there are significant differences in what the view impacts would be depending on which interpretation of the height of the proposed building is adopted. There is significantly more impact on iconic views, and on views generally, from both the hotel rooms and The Astor apartments, if the Council's interpretation of height is accepted, with the views impacted including those of the Opera House, Sydney Harbour, the Harbour Bridge, the Royal Botanic Gardens, and the land/water interface, with the impacts varying from minor to severe from different vantage points.

341. These view impacts are clearly significantly less than if a 30m upper level setback applies, however there are still view impacts for the Intercontinental Hotel as previously outlined which are a result of the combination of the nil setback of the development to the western (rear) boundary and the height, with the experts agreeing that the impact on hotel rooms from Levels 18 up to level 23 was severe (Ex C11, p 38). Mulpha submits that, applying the fourth step of the Tenacity assessment, the reasonableness of the proposal that is causing the impact must be considered, with a complying development considered more reasonable than one that breaches controls. Where a breach is caused by non-compliances even a moderate impact may be considered unreasonable whereas with a complying development there is still a test to determine if a more skilful design could give the same development potential for the applicant and reduce the view impacts to neighbours. It was Mulpha's submission that a development complying with even just the height controls and rear setback would have significantly less impact than the current proposal.

342. Dr Lamb considered that there is a difference in the view loss from a commercial building in contrast with commercial visitor accommodation, for which views are more important. In his opinion, there is a gap in the 2012 DCP in that view impacts on serviced apartments are a consideration but hotel rooms are not specifically mentioned, yet both serve a similar function. The premium rooms in the International Hotel are those with iconic views, and a number of these rooms will have severe impacts associated with the proposed development. In Dr Lamb's opinion, the rear setback non-compliance, combined with the proposed height, has a severe impact on a number of rooms at several levels in the Intercontinental Hotel in terms of their current views to the north and north east across the harbour. In his opinion, at least 4 rooms on each level from Level 18 to Level 23 would have significant view impacts (Ex C11, p40).

343. Mr Harrison notes that out of 500 hotel rooms, only 36 rooms in the Intercontinental Hotel are significantly affected by the development being north facing rooms on the upper levels. Whilst there is a loss of a view of the Opera House views are generally retained of the Harbour Bridge and the Botanic Gardens. In his opinion, it is unreasonable to expect views to be maintained across boundaries and from non-residential uses. In a city context views are not guaranteed and are generally harder to protect. Mr Harrison commented that the Intercontinental Hotel itself substantially breaches the 2012 LEP height control, and towers above the Botanic Gardens sun access plane. He was also of the opinion that the claimed non-compliances do not make a significant difference to the view impacts from the rooftop communal terrace of The Astor compared to the view loss that would result from a compliant development: this view is panoramic and expansive, and views to the Opera House and Botanic Gardens would be retained.

Findings

344. In addition to observations on the view from rooms on the north facing side of the Intercontinental Hotel, The Astor, and Quay Apartments, in evidence are detailed photomontages of those views in Mr Rohipa’s Statement of Evidence (Ex H, Appendix D), and of views from the Hotel Intercontinental in Dr Lamb’s Statement of Evidence (Ex M6, Appendix A). Based on the view and the photomontages, we are satisfied that the proposed development would impact on views to the north including the Opera House and Sydney harbour both for rooms in the Intercontinental Hotel, and apartments and communal open space areas of The Astor apartments, and views to the south and south east from Quay Apartments.

345. In Tenacity, Roseth SC set out principles for determining whether view sharing is reasonable:

25 The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) To decide whether or not view sharing is reasonable, I have adopted a four-step assessment.

26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.

27 The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.

28 The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

29 The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.

346. The experts disagreed as to whether the view impacts should be described as minor, moderate, or severe. Mr Harrison, for example, noted that the views of the Opera House are retained for The Astor roof terrace, and that the intrusion of the proposed development could not in his opinion be said to be significant given the expansive nature of the view (Ex C11, p 41). However, Mr Williams considered that the loss of the view of part of the Harbour Bridge from the roof terrace is significant (Ex C11, p 39). Mr Harrison considered that the impact on the central rooms of the Intercontinental Hotel on the north side is moderate to severe, but in any event acceptable in terms of view sharing, whereas Dr Lamb described the view loss as severe.

347. We accept that the view impacts on the Intercontinental Hotel are substantial, based on the extent of the views of the Harbour and Opera House lost for rooms on the north facing side, and the use of those rooms for visitor accommodation. Based on the view, in particular that part from the roof terrace, we accept that for The Astor apartments those impacts would not be regarded as being as significant. However, in both instances, the impacts could be avoided or reduced by a development which complied with the height and setback controls in the 2012 DCP as interpreted by the Council. Even if the required upper level setbacks are as determined by the Council, which would permit a tower form generally in the manner proposed, there are severe impacts associated with the non-compliance with the rear setback and the exceedance of the height when determined in accordance with the methodology for height definition which we have accepted.

348. Determination of the setbacks and height through a site specific DCP or Stage 1 DA process would enable consideration of view sharing alternatives, and the issue of view loss is a further factor in our conclusion that it is not unreasonable or unnecessary to engage in that process.

Public Interest

349. The Council contends that the proposed development is not in the public interest as it has not properly or orderly applied the planning controls applicable to the site, or addressed the matters raised in submissions on the 2013 DA. We have discussed above the application of the 2012 LEP and 2012 DCP provisions, noting in particular the impacts arising from the non-compliance with the height control and the side and rear setback controls, and the difficulty in interpreting, and applying, the setback above street frontage height provision for Macquarie Street and Albert Street.

350. The experts disagree as to the appropriateness of the departures from the controls. Mr Cirillo considered that the development represents a thoroughly considered design approach to a complex site; and in comparison to 2012 DCP controls, and the existing building, the proposed development sits as a “recessive and appropriate medium scale infill building in Macquarie Street” and will have no demonstrable negative impact on Macquarie Street, the Opera House or the Botanic Gardens. Furthermore, the proposed building does not propose a podium or tower that is greater in volume than the maximum permissible building envelope under the 2012 DCP (Ex C10, p 26).

351. In contrast, Mr Chambers was of the opinion that the public interest is best satisfied by having clear, consistent and readily understandable controls and for the development to then responsibly and appropriately respond to those controls (Ex C10, p 27).

352. In our view, the development proposes a number of departures to existing general and specific controls, with adverse impacts on adjoining uses, and which would result in a visually prominent building located within a significant heritage context. It may be that through the process of developing a site specific DCP or Stage 1 DA a development generally of the scale and form proposed would emerge, with a tower element. That process would include public consultation and participation, and would provide certainty as to the minimum upper level rear and side setbacks and a view impact analysis of the resultant form.

Conclusion

353. It was common ground that this is a sensitive site, with a listed heritage item on the site, and heritage items on two boundaries and on the opposite corner. Whatever is developed on the site has the potential to have adverse impacts not just on the adjacent heritage items and streetscapes, but on the amenity of future occupants of the development, and of existing occupants of adjacent development. This is irrespective of whether the adjacent development is of a commercial or residential nature, as evidenced by the concerns raised as to impacts on the Intercontinental Hotel and to the users of Transport House. The architectural merit of the building itself was largely not in dispute, however the context of the site and, in particular, the significant heritage values ascribed to its location, is a key issue.

353. We accept Stamford’s argument that a site specific DCP could not of itself address a number of potential amenity issues arising from development, such as the extent of solar access, ventilation, privacy or private open space provision which would require resolution at DA stage. However, a site specific DCP would establish building envelopes and land use principles, and a framework in which a development could then be designed which minimises adverse amenity outcomes. By establishing, for example, minimum setback controls, at all levels of the development and to all boundaries, and proposed uses, in a process where those controls are publicly exhibited and transparent, a site specific DCP would indicate for neighbours and the broader public, in a way that a competitive design process could not, the likely impacts of future development on the site, in terms of broad amenity issues, views, and heritage and streetscape impacts.

354. We accept that the 1996 DCP would have allowed no tower on the site, yet all three designs in the competitive design process undertaken when that development control plan was in force had a tower. We also accept that the 2013 DA has been developed in consultation with officers of the Council and the Heritage Council on the premise of a tower since then, even with changes to the planning controls.

355. The Council conceded that, had the development complied with the existing height and setback controls for the site as the Council interpreted them, it may have been unreasonable or unnecessary to require a site specific DCP prior to granting consent, and that view impacts would not have been pressed. However, as the Council and Mulpha both argued, the development departs from all of these controls, on a constrained heritage site that deserves the best possible outcome. In our view it is inappropriate to rely on the existing 2012 DCP minimum upper level setback controls to argue why a site specific DCP is not required, if those controls are not complied with.

356. We accept that a development that met the 2012 DCP setback controls as interpreted by the Council and Stamford could potentially also have adverse impacts on the streetscape, on views from The Astor and the Intercontinental Hotel, on privacy and views for Quay Apartments, and on the former Health Department building. However, a site specific DCP or Stage 1 DA would address those considerations, as well as addressing the appropriate height for the proposed building, in a transparent process.

357. We are not satisfied that cl 7.20(2) of the 2012 LEP is met, or that a site specific development control plan addressing the matters required by cl 7.20(4) (or a Stage 1 DA) is unreasonable or unnecessary in the circumstances. For that reason, consent cannot be granted to the proposed development.

Orders

359. The Orders of the Court are:

1. The appeal is dismissed.

2. Development Application D/2013/2011 for the retention and adaptive re-use of the former Department of Health building; partial retention and re-use of part of the Sir Stamford Hotel building; construction of a 19 storey tower building accommodating residential apartments, retail/commercial floor space and basement car parking spaces; and ancillary landscaping and public domain improvement works, at 93-97 Macquarie Street, Sydney, is refused.

3. The exhibits are returned except for Exhibits A, C1, C13 and M1.

Linda Pearson                              Jenny Smithson

Commissioner of the Court      Acting Commissioner of the Court

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Decision last updated: 28 May 2015