State Capital Property Pty Ltd v The Council of the City of Sydney

[2023] NSWLEC 1076

Land and Environment Court

New South Wales

Medium Neutral Citation:

State Capital Property Pty Ltd v The Council of the City of Sydney [2023] NSWLEC 1076

Hearing dates:

30-31 January 2023

Date of orders:

21 February 2023

Decision date:

21 February 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) Development Application D/2021/1110 for the change of use of the existing building on the site to mixed use development comprising ground floor commercial premises, and 10 residential units and 3 x dual key above, including alterations and additions, is refused.

(3) All exhibits are returned, but for Exhibits A, B, C, D and E.

Catchwords:

DEVELOPMENT APPLICATION: change of use – residential apartment development – mixed use development – FSR standard is exceeded - heritage conservation area – street frontage height

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Sydney Local Environmental Plan 2012, cll 4.4, 4.6

Cases Cited:

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130

Bettar v Council of the City of Sydney [2014] NSWLEC 1070

Texts Cited:

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

State Capital Property Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
A Pickles SC (Applicant)
A Singh (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Sydney City Council (Respondent)

File Number(s):

2022/112720

Publication restriction:

Nil

Judgment

1. COMMISSIONER: An existing building, known as ‘Morgan’s Boutique Hotel’ currently provides hotel rooms and other accommodation above ground floor commercial premises on a site at 304-310 Victoria Street, Darlinghurst.

2. The building occupies the whole of the site, addressing Victoria Street to the west, and Nimrod Street to the rear.

3. A small internal courtyard and light well in the middle of the site separates that portion of the existing building fronting Victoria Street from that portion fronting Nimrod Street.

4. On 29 September 2021, the Applicant in these proceedings, State Capital Property, lodged Development Application D/2021/1110 with the Council of the City of Sydney (the Respondent) for the change of use of the existing building on the site to mixed use development comprising ground floor commercial premises, and 10 residential units, and 3 x dual key above, including alterations and additions (the DA).

5. The DA was publicly notified for a period of 21 days between 15 October 2021 and 6 November 2021.

6. As the DA was not otherwise determined, the Applicant lodged an appeal against the deemed refusal of the DA in class 1 of the Court’s jurisdiction on 20 April 2022, under s 8.7 of the Environmental Planning and Assessment Act 1979.

7. On 25 November 2022, the Applicant amended the DA by virtue of amended plans and other documents that were subsequently notified between 28 November 2022 and 19 December 2022.

8. At the commencement of the hearing, the Applicant sought to rely upon further amended plans that incorporated changes to the proposal agreed by experts in joint conferencing.

9. The Respondent confirmed that the amendments resolved certain contentions and agreed, as the relevant consent authority under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the DA by the following documents:

1. Amended architectural plans, prepared by Conrad Gargett (Exhibit B)

2. Revised SEPP65 Design verification statement, prepared by Conrad Gargett (Exhibit C)

3. Revised clause 4.6 request, prepared by Chapman Planning dated 27 January 2023 (Exhibit D)

4. Additional view assessments, prepared by AE Design Partnership dated 21 October 2022 (Exhibit E)

5. Natural Ventilation statement, prepared by Windtech dated 27 January 2023 (Exhibit F)

6. Fire services statement, prepared by Michael Frost & Associates dated 19 January 2023 (Exhibit G)

7. Amended Operational Waste and Recycling Management Plan, prepared by Chapman Planning dated 26 January 2023 (Exhibit H)

8. Revised Access Report, prepared by iAccess Consultants dated 15 November 2022 (Exhibit J)

9. Disabled Access and Egress Report, prepared by iAccess Consultants dated 16 November 2022 (Exhibit K)

10. Revised BCA compliance report, prepared by Blackett Maguire + Goldsmith dated 25 November 2022 (Exhibit L)

The site and its locality

10. The site is legally described as Lots 13, 14 and 15 in Deposited Plan 81.

11. A survey accompanying the class 1 application (Exhibit A, Tab 15) identifies the site frontage to Victoria Street be 16.455m in width, 16.395m in width to Nimrod Street, and just over 24m in depth resulting in a total site area of approximately 400m².

12. According to the Amended Statement of Facts and Contentions prepared by the Respondent, the existing building currently presents four storeys to Victoria Street, above which a mansard roof is visible, while the building presents four storeys to Nimrod Street inclusive of a rooftop terrace.

13. In general terms, surrounding development on the eastern side of Victoria Street comprises ground floor commercial with residential above.

14. It is also relevant to note here that a residential flat building at 314-318 Victoria Street, located to the south of the subject site, and known as the ROX building presents as either four or five storeys to Nimrod Street.

15. That said, existing development in the vicinity of Nimrod Street is largely two-storey terrace house dwellings, and some three-to-four storeys residential flat buildings.

16. At the intersection of Nimrod Street and Caldwell Street is a small pocket park identified as the Nimrod Street Rest Area.

17. The site is located within the B4 Mixed Use zone identified in the Sydney Local Environmental Plan 2012 (SLEP), in which both commercial and residential uses are permitted with consent, where consistent with the objectives of the zone, which are:

•  To provide a mixture of compatible land uses.

•  To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

•  To ensure uses support the viability of centres.

18. The site is also within the Oxford Street and Victoria Street Heritage Conservation Area (C12) (Oxford/Victoria HCA), according to Schedule 5 of the SLEP. The statement of significance for which is in the following terms:

“The Darlinghurst Road and Victoria Street Conservation Area has high local historic, aesthetic and social significance as facilitators of, and mirrors of, the development of Darlinghurst and East Sydney. The development of this area in turn is symptomatic of the rapid growth of Sydney between 1850 and 1900.

Darlinghurst Road and Victoria Street have significance as part of the first phase of European development in the area. Darlinghurst Road was created to provide access to the 1830s villa estates along the Darlinghurst ridge from Oxford Street whilst Victoria Street the latter was created by the subdivision of Thomas Mitchell’s villa estate, Craigend, in 1841. As the two principal streets of Darlinghurst, Victoria Street and Darlinghurst Road illustrate the developmental overlay that followed the incremental subdivision of the 1830s villa estates and the Riley Estate that bordered them from the mid 1840s for residential, commercial and institutional purposes. The area has historic significance for the important institutions that are to be found within it including St. Vincent’s Hospital, the Sacred Heart Church, School (former) and Hospice and St. John’s Church and School (former). Considerable social significance arises out of the presence of these institutions for over 150 years.

The Conservation Area possess a coherent and strongly urban form derived predominantly from Victorian and Federation period residential/commercial development with Darlinghurst Road and Victoria Street, Darlinghurst being vibrant streetscapes which traverse the ridge line between Woolloomooloo and Rushcutters Bay. The area contains a number of aesthetically significant and prominent buildings such as the Darlinghurst Fire Station, St. John’s Church and Rectory, the Sacred Heart Church, the c.1919 St. Vincent’s Hospital, the First Church of Christ Scientist, and a number of fine inter - war residential flat buildings as well as grand houses such as Iona.

Green Park provides an important open public space that is of historic and aesthetic significance. The Park also has high social significance for the memorials it contains.”

19. The Oxford/Victoria HCA borders the Barcom Avenue Heritage Conservation Area (Barcom Ave HCA) along the alignment of Nimrod Street to the east of the site. The statement of significance for the Barcom Avenue HCA, is in the following terms:

“The Barcom Glen Estate was a predominantly industrial and rural area until the nineteenth century, subdivided for residential development later than surrounding districts. It therefore has historical significance for its ability to evidence the industrial history of Darlinghurst. The area also has high aesthetic values for its fine coherent streetscapes representing middle class, residential development of the late Victorian period, Federation, and inter-war periods. The topography and street plantings enhance the picturesque qualities of the highly intact streetscapes.”

20. The site is also within what is known as the Darlinghurst West locality, according to the Sydney Development Control Plan 2012(SDCP). The locality statement for the area is in the following terms:

“This locality is bounded by Forbes Street to the west, the rear of the southern lots that have frontage to William Street to the north, the rear of the eastern lots with a frontage to Victoria Street to the east, Burton Street to the south and Liverpool Street to the southwest.

Darlinghurst West will continue to be a vibrant and diverse area, energised by its unique café and restaurant opportunities and the quieter residential areas and heritage buildings within a landscaped setting.

The main activity centre for this area is the existing Darlinghurst Road/Victoria Street retail spines between Burton and William Streets. These retail spines will reinforce the predominant built form character of buildings with vertical articulation that reflects the small lot subdivision pattern and low scale streetwall heights with awnings.

The built form is characterised by variety of residential buildings, consistent streetscape and a strong presence of interwar buildings. The residential precinct at the north of the area (Kirketon Road, Farrell Avenue and Clapton Place) is to maintain its predominant character of taller buildings in a landscape setting. New infill buildings in terrace housing areas are to maintain the predominant building setbacks, streetwall heights and alignments.”

21. The principles identified by the Respondent as relevant are:

“Principles

…

(b) Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes.

...

(e) Maintain the predominant street setback and alignment of rows and areas with a consistent character.

…”

22. The hearing commenced with an onsite view, at which the Court, in the company of legal representatives and experts, observed the site and its surrounding context described above.

23. In considering those contentions pressed by the Respondent in this matter, the Court was assisted by the evidence of the following experts in urban design and planning, who conferred in the preparation of a joint expert report (Exhibit 2):

• Mr Rohan Dickson on behalf of the Applicant, and Ms Erin Colgrave on behalf of the Respondent in respect of urban design.

• Mr Garry Chapman on behalf of the Applicant, and Mr James Cooper on behalf of the Respondent in respect of planning.

24. I also note the Court was assisted by the following experts in built heritage, who conferred in the preparation of a joint expert report (Exhibit 3):

• Ms Samantha Polkinghorne on behalf of the Applicant, and Ms Vanessa Holtham on behalf of the Respondent.

The proposed development exceeds the floor space ratio standard

25. In general terms, the proposal is to convert the existing hotel rooms above ground floor uses to residential apartments, served by the central vertical circulation in the form of stair and a lift.

26. Two apartments, identified as Apartments 402 and 403, are proposed in the location of the existing roof terrace to the rear of the site fronting Nimrod Street. Each apartment has accommodation over two levels, accessed internally by stairs.

27. The Respondent considers the uppermost level, Level 5, as a storey while the Applicant argues that as Level 5 is located in a roof, it is properly understood to be an attic.

28. Whether the floor area on Level 5 is a storey or a roof goes primarily to the question of consistency with the ‘Building height in storeys’ control at Section 4.2.2.2 of the SDCP, and the acceptability of the proposal in terms of height, bulk and scale to Nimrod street.

29. However, regardless of how Level 5 is defined, the proposed development exceeds the floor space ratio standard at cl 4.4 of the SLEP, and the planning experts agree that the exceedance is caused by the addition of floor area at Level 5.

30. The proposal results in an increased gross floor area (GFA) on the site that is expressed as a floor space ratio (FSR) of 3.54:1. As the applicable FSR standard for the site at cl 4.4 of the SLEP is 2.5:1, the proposed development exceeds the permitted FSR and relies upon a written request prepared by Chapman Planning in accordance with cl 4.6 of the SLEP (Exhibit D).

31. That said, it is commonly held that the FSR of the existing building already exceeds the applicable FSR standard, expressed as 3.32:1, according to the written request, or 3.33:1, according to area calculations shown on architectural drawing A2301 (Exhibit B). Furthermore, a prior consent dated 2017 (Exhibit M, Tabs 1 and 2) was for development on the site that resulted in a FSR of 3.77:1.

32. According to Ms Colgrave, the exceedance of the FSR standard by the existing building is due to two factors. Firstly, due to the absence of a setback above the Level 3 to Victoria Street, and secondly, due to its use as a hotel that does not have a requirement for greater residential amenity in the form of balconies and the like.

33. The written request asserts that compliance with the FSR standard is unreasonable and unnecessary as the proposal achieves the objectives of the standard, notwithstanding non-compliance with the standard.

34. The objectives of the FSR standard at cl 4.4 of the SLEP are:

(a)  to provide sufficient floor space to meet anticipated development needs for the foreseeable future,

(b)  to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic,

(c)  to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure,

(d)  to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality.

35. Consistency with objective (a) is said to be achieved, according to the written request, because:

1. Firstly, the additions to the existing building are within a building envelope envisaged by the planning controls, including an 18m height limit and four-storey height control contained in the SDCP.

2. Secondly, the adaptive reuse of the existing building from hotel use to a residential flat building provides additional floor space that is consistent with residential dwelling growth sought by the Eastern City District Plan and certain priorities within the City of Sydney Local Housing strategy (Exhibit M, Tab 5). Such a change of use, and commensurate exceedance of FSR, is evident in recent development such as ‘Top of the Town’, ‘Omnia’, ‘Ikon’, ‘Rockwall Apartments’, ‘The Gazebo’, the former ‘Sebel’ in Elizabeth Bay, and the former ‘Vibe Hotel’, currently under construction. Curiously, I note here that the written request asserts, on p3, that 10 residential units are proposed above ground floor uses. However, clearly, a total of 13 units are proposed.

3. Such changes of use are responsive to a desire by the Respondent for more housing in well serviced areas such as Potts Point and Kings Cross, and reflect a decline in hotel and entertainment uses.

36. Consistency with objective (b) is said to not be necessary as the objective is explanatory of the central purpose of the FSR standard itself, which is to regulate built form. That said, the form and scale of the proposal is suited to the B4 Mixed Use zone, and the exceedance is attributed to the existing built form on the site. Where additional units are proposed, they support the commercial viability of the B4 Mixed Use zone. However, again, curiously, the written request asserts 10 apartments are proposed, that will contribute to pedestrian/ vehicle activation in the precinct. Again, clearly 13 apartments are proposed which presumably achieves the same or similar activation as that provided by the said 10 apartments.

37. Consistency with objective (c) is said to be demonstrated by a portion of the exceedance being already accommodated by existing infrastructure. Providing additional residential development in highly serviced areas such as this is consistent with strategic planning priorities found in the City of Sydney Local Housing Strategy. The additional FSR is modest, onsite parking provision will reduce the demand for on-street parking, while public transport is abundant in close proximity and the area is highly walkable.

38. Finally, consistency with objective (d) is said to be achieved by providing additional floor area within the 18m height limit, and conformity with the four-storey height of storeys control, which is evidence the proposal achieves the desired future character intended by the relevant controls.

39. I accept the reasons set out in the written request that the first three objectives of the FSR standard are achieved, notwithstanding the non-compliance. However, whether the written request demonstrates the fourth objective is achieved requires consideration first as to how the uppermost level at Level 5 is to be regarded.

40. As was shown by the Court of Appeal in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130, at [51], “…in order for a consent authority to be satisfied that an applicant’s written request has “adequately addressed” the matters required to be demonstrated by cl 4.6(3), the consent authority needs to be satisfied that those matters have in fact been demonstrated. It is not sufficient for the request merely to seek to demonstrate the matters in subcl (3) (which is the process required by cl 4.6(3)), the request must in fact demonstrate the matters in subcl (3) (which is the outcome required by cl 4.6(3) and (4)(a)(i)).”.

41. The parties agree, as I do, that the proposed development is within the 18m height limit. That is not in dispute. In fact, the Applicant submits that a reasonable application of building height advanced in Bettar v Council of the City of Sydney [2014] NSWLEC 1070 would find that the height of the proposal above the level of Nimrod Street measures 14.5m, which is comfortably below the maximum building height.

42. However, because of provisions contained in Section 4.2 of the SDCP, the issue is whether Level 5 is properly regarded as a storey or an attic. In the event Level 5 is found to be an attic, the written request may be considered to accurately state consistency of the development with the four-storey control applicable to the site. In the alternative, if Level 5 is a storey, the proposal exceeds the four-storey control, a scenario not dealt with in the written request that otherwise asserts compliance with the FSR standard is unreasonable or unnecessary because, in part, compliance with the four-storey control is demonstrative of achieving the desired character of the locality with minimal adverse amenity impacts.

36. Section 4.2.1.1 of the SDCP applies a four-storey control to the site by virtue of the Building Height in Storeys Map, the objective of which is to “Ensure the height in storeys and street frontage height in storeys reinforces the existing or future neighbourhood character.”.

37. The relevant provisions are:

“(1) Development must not exceed the maximum number of storeys as shown in the Building height in storeys map.

(2) The maximum may only be achieved where it can be demonstrated that the proposed development:

(a) reinforces the neighbourhood character;

(b) is consistent with the scale and form of surrounding buildings in heritage conservation areas; and

(c) does not detract from the character and significance of the existing building.

…

(4) Where the Street frontage height of buildings map does not indicate the maximum height, the maximum street frontage height must generally be consistent with the street frontage height in storeys of adjacent buildings, or the predominant street frontage height in storeys in the vicinity of the proposed building.

(5) Height of buildings and the street frontage height in storeys should not match anomalous tall neighbouring buildings that are inconsistent with the neighbourhood.”

45. A storey is defined in Section 4.2.1 as follows:

“Definitions

A storey is the space between a floor and the next floor level above. It does not include an attic, a mezzanine or a space that contains only a lift shaft, stairway or meter room.

Street frontage height in storeys is the vertical height the part of the building closest to the street boundary.”

46. A storey is also defined in the dictionary of the SLEP in virtually identical terms:

storey means a space within a building that is situated between one floor level and the floor level next above, or if there is no floor above, the ceiling or roof above, but does not include—

(a)  a space that contains only a lift shaft, stairway or meter room, or

(b)  a mezzanine, or

(c)  an attic.

47. Whether the proposal exceeds the Building height in storeys control or not is disputed, and turns on whether the uppermost level is an attic, as the Applicant believes, or is a storey, as submitted by the Respondent.

48. An attic is defined in the dictionary of the SLEP in the following terms:

Attic means any habitable space, but not a separate dwelling, contained wholly within a roof above the ceiling line of the storey immediately below, except for minor elements such as dormer windows and the like.

49. According to the Respondent, as the uppermost level of the proposal is properly understood to be a storey, it is a fifth storey and so the four-storey Building Height in Storeys control is exceeded.

50. The additional bulk that results is incongruous in the streetscape, and exacerbated by failing to comply with Section 4.2.2.2 of the SDCP that requires, at Provision 2:

“A setback above the street frontage height is to be a minimum of 3m for residential above non-residential and for residential above residential.”

51. That said, the experts agree that no street frontage height is nominated for the Nimrod Street frontage and so the street frontage height should follow the predominant street frontage height in storeys in the vicinity of the proposed building, consistent with Section 4.2.1.1, Provision 4 at [44].

52. I note here it is agreed that Level 5 also overshadows a small triangular open space at the intersection of Nimrod Street and Caldwell Street, known as the Nimrod Street Rest Area, that is already heavily overshadowed by existing development in the area.

The uppermost level is a storey

53. The Applicant submits that the curved form and metal finish of the uppermost level, and degree of pitch off vertical qualify it as a roof, while Ms Colgrave believes that as the majority of the perimeter to Level 5 is vertical and not pitched or inclined, and the footprint of Level is effectively the same as the level below, it is indicative of a storey designed with the visual appearance of a roof, while not having the characteristics of a roof.

54. To this end, Ms Colgrave estimates 60% of the perimeter to be vertical, and the remainder with a pitch of only 3 degrees, the effect of which is a form that does not constrain the useable floor space at Level 5 by low head height as would be expected in floor space contained within a roof. As it is put by Ms Colgrave in the joint report, “a habitable room in an attic can achieve significantly less ceiling height of a minimum of 2.2m for two-thirds (National Construction Code Volume 1, F3.1(a)(iv)(A)(aa)), a consequence of being enclosed by genuinely sloping roofs which constrain the head height and floor space.”.

55. Mr Dickson considers the building elements work together so that Level 5 is read as a roof. The four-storey masonry frontage to Nimrod Street is terminated by a defined cornice, above which the curved roof is recessed and expressed differently and distinctly.

56. While acknowledging roof forms come in a wide variety of forms and finishes, I find Level 5 is not contained wholly within a roof, but is located under a roof as suggested by Ms Colgrave’s evidence. (Emphasis added.)

57. I have formed this view for three reasons:

1. Firstly, due to the large extent of vertical walling enclosing the majority of the perimeter of Level 5. In particular, to the western elevation of apartments 402 and 403, facing the central light well, and those sections of walling facing north and south at the side lightwells addressing Nimrod Street. While there is little indication of it on the architectural drawings, the arrangement shown on the roof plan A2115, and Section AA, A3500 indicates a gutter to capture roof water is at the top of the west facing walling, supporting a view the roof is the element above, and not the elements wholly enclosing that portion of the apartments at Level 5.

2. Secondly, where the roof is pitched at 3 or 4 degrees off vertical, I consider that pitch so negligible an incline that it is unlikely to be perceived as pitched. It is more likely to be seen as a continuation of the vertical walling and so be read as a wall, albeit one clad in a material often, but not exclusively, used for roofing.

3. Thirdly, while the experts do not believe the form of the openings fronting Nimrod Street at Level 5 assists in resolving whether Level 5 is a storey or an attic, I respectfully disagree. While it is common for a mansard-style roof to be used in situations such as this, such a roof generally has one of three types of openings. The first is a protruding dormer that permits vertical height in a limited area in the immediate vicinity of the raised section of roof forming the dormer. The second type is a recessed dormer that creates a localised inset or void in the pitch of the roof that otherwise continues to form an enclosure and ‘skirt’ at the low side of the inset. The third type of opening is a rooflight, skylight or the like that may be in line with the roof pitch or protrude from it. All require variations of flashing for weather protection. The size, scale and finish of each of these types of openings in proportion to the roof in which it, or they, is important for the visual cues it, or they, give an observer. However, in this case, the elevations and section drawings depict a conventional sliding glazed window and door assembly that, in my view, in no way differs from an opening in a wholly vertical wall and which is likely to contribute to the perception the uppermost level is a storey.

58. As Level 5 is properly considered a storey, the proposal is for a five-storey development on a site identified for a maximum of four storeys, contrary to Section 4.2.1.1, Provision 1, of the SDCP.

59. While the experts deal with the desired character of the locality in which it is located and the degree to which adverse impacts on the amenity of that locality are minimised, the written request does not. In particular, the written request does not address, adequately or otherwise, how objective (d) is achieved by an exceedance of the Building height in storeys control, given Level 5 of the proposed development presents an additional storey to Nimrod Street. The written request merely relies upon a statement that the proposal conforms to the four-storey height control as evidence that strict compliance with the FSR standard is unreasonable or unnecessary.

60. While I conclude the written request does not adequately address the matters to be addressed at cl 4.6(3)(a) of the SLEP, in the event I am incorrect in my conclusion, I will now consider the evidence of the experts in respect of desired character and the impact on the amenity of the locality which is the subject of the objective (d) of the FSR standard.

61. In summary, Mr Chapman’s evidence in the joint report is that the presentation of four storeys to Nimrod Street and recessed upper level is compatible with the height and setback of the ROX development, and from which no privacy or significant overshadowing is likely to result in the vicinity of the site.

62. The Building street frontage height in storeys map is silent on the street frontage height addressing Nimrod Street. Section 4.2.1.1, Provision 4 states where such a height is not nominated, the maximum street frontage height must generally be consistent with the street frontage height in storeys of adjacent buildings, or the predominant street frontage height in storeys in the vicinity.

63. However, Provision 5 excludes “…anomalous tall neighbouring buildings that are inconsistent with the neighbourhood” from this exercise.

64. Mr Chapman cites the nearby ROX development at 314-318 Victoria Road as a similar height and setback to that proposed, while Ms Holtham considers a building identified as ‘detracting’ in the Oxford/Victoria HCA to be an inappropriate benchmark, with a poor upper level setback that does little to reduce the bulk and scale and so instead, cues should to be taken from surrounding development in a manner that facilitates transition between the Oxford/Victoria HCA and the Barcom Avenue HCA.

65. A streetscape analysis prepared by Ms Colgrave (Exhibit 2, Appendix L) is said to demonstrate that, while anomalous, the ROX Development presents a three-storey street frontage height to Nimrod Street, above which additional bulk is setback.

66. Figure 4.11 of the joint expert report (Exhibit 2), also prepared by Ms Colgrave, and reproduced below, is also said to show failure to respond to the maximum three-storey height in storeys of the context, evident in the ROX development and an existing residential flat building to the south at No 320-324B Victoria Street.

67. In the joint report, Mr Dickson observes that the streetscape analysis prepared by Ms Colgrave is merely an assessment of the existing character and not the desired character that is the subject of objective (d) of the FSR standard.

68. Instead, the desired character, described by Mr Dickson at par 139 of the joint report, is for larger bulky buildings to the west side of Nimrod Street in the vicinity of 18m in height, with a FSR of 2.5:1, or higher, given the prior consent on the site, and a street wall height of three-to-four storeys.

69. Of particular note is No 312 Victoria Road, on which a Building height in storeys of five-storey is nominated and a height limit of 18m applies which, if measured from Nimrod Street, would stand a storey taller than the proposed development. A five-storey control also applies to the site immediately south of the ROX development.

70. More broadly in the precinct, the Applicant also cites the consent granted to a development at 118A Darlinghurst Road, opposite the subject site, despite exceeding the height permitted under the SLEP on a site with a five-storey control, and failing to observe a required setback above the street frontage height (Exhibit M, folios 297-298).

71. The Applicant submits this suggests five storeys cannot therefore be said to detract from the desired character of Nimrod Street or the Oxford/Victoria HCA.

72. I accept that the height and FSR controls are relevant indicators of desired character for the western side of Nimrod Street. However, I also happen to consider it unlikely, for reasons similar to those in this case, that the distribution of floor space on the sites to the western side of Nimrod Street will permit the maximum height of buildings standard to be achieved without exceeding the FSR of 2.5:1.

73. I prefer and accept Ms Colgrave’s analysis of the streetscape that suggests the predominant street frontage height is likely to be three storeys when the provisions of the SDCP are understood. The locality is a heritage conservation area in which height and FSR controls may be expected to be informed by matters of streetscape presentation and the like. In fact, the range of concerns that inform development in a heritage conservation area are set out at Section 3.9.6 of the SDCP.

74. Section 3.9.6(2) of the SDCP provides for new infill buildings and alterations and additions to existing buildings in a heritage conservation area which are not to be designed as a copy or replica of other buildings, but are instead to complement the character of the heritage conservation area by sympathetically responding to matters identified at Section 3.9.6(1)(a) to (e).

75. Those matters include:

“(a) topography and landscape

(b) views to and from the site;

(c) significant subdivision patterns and layout, and front and side setbacks;

(d) the type, siting, form, height, bulk, roofscape, scale, materials and details of adjoining or nearby contributory buildings;

(e) the interface between the public domain and building alignments and property boundaries; and

…”

76. In similar terms, Section 3.9.9 of the SDCP deals with detracting buildings, which applies to the subject site. Alterations and additions to detracting buildings are to, at (2)(b), “respect the prevailing character of the area and street in terms of bulk, form, scale and height.”.

77. Section 3.9.6(1)(d) nominates the type, siting, form, height, bulk, roofscape, scale, materials and details to which a proposal should respond sympathetically are those evident in adjoining or nearby contributory buildings (emphasis added), which precludes the ROX development from being the model in matters of height and bulk that are of particular relevance to the street frontage height in this case.

78. Absent a defined street frontage height to Nimrod Street, future development to this frontage will seek a contextual response. To the extent the ROX development is relevant to such a response, I agree with Ms Colgrave that it is the three-storey enclosure, and not the open masonry fins above that define the street wall height. The masonry fins may notionally form a solid when perceived in the extreme oblique, but are opened above and only punctuate the three-storey bulk of the development at certain discrete points. In truth, the fins are a utilitarian façade feature designed to provide separation between balconies, and read as such.

79. By contrast, the site at No 320-324B Victoria Street is a contributory item in the Oxford/Victoria HCA and unambiguously presents a three-storey frontage to Nimrod Street.

80. The desired character of the western side of Nimrod Street is, in my assessment, a three-storey street frontage height. To the extent further floor space is available on sites within the height standard, that additional floor space is likely to be setback, presumably in the order of 3m desired by Provision 2, Section 4.2.2.2 of the SDCP.

81. Returning to the written request then, I again reiterate its deficiencies. It could be speculated that arguments exist to suggest the adaptive reuse of the existing floor plan, which includes a central light well, requires the concentration of floor space to the Nimrod Street frontage that, in seeking to retain original aspects of the site, drive inconsistencies in other areas of the site. However, such arguments are not made. Instead, the written request asserts, incorrectly, consistency with the relevant storey height control.

82. I am unable to form an opinion of satisfaction that compliance with the FSR standard is unreasonable or unnecessary in the circumstance of this case for the reason that the written request has not adequately addressed that the proposal achieves the objectives of the FSR standard, notwithstanding the non-compliance.

83. Likewise, I am unable to form the requisite opinion of satisfaction, required of me by cl 4.6(3)(b) of the SLEP that the environmental planning grounds advanced by the written request are sufficient to justify the contravention of the standard for the reasons that follow:

1. Firstly, while the written request argues that the non-compliance is a function of the existing non-compliance evident in development that pre-dates the requirements of cl 4.4 of the SLEP, I note the proposal, in seeking adaptive reuse, provides amenity in accordance with the Apartment Design Guide that has the effect of reducing area defined in the calculation of the FSR on the site. To this end, balconies provided to all apartments are excluded from the GFA calculations on drawing A2301. The Applicant submits that this necessitates the recapturing of GFA lost in the provision of amenity required in residential flat buildings. However, the quantum of area sought to be ‘recaptured’, and the reasons necessitating its recapture are not made out in the written request. The ground of viability is not advanced, nor is it supported by evidence.

2. Secondly, the written request relies on grounds that, in my view, may be properly described as promoting the benefits of the development as a whole over the particular circumstances of the contravention. In this respect, the written request identifies benefits derived from the retention of ground floor commercial premises as a source of employment opportunities, and additional residential density as a means of delivering on the Housing Strategy and Planning Statement, citing Priorities that seek additional housing, and a certain mix of housing. While the proposal unquestionably provides those benefits, those benefits would also accrue from a development absent the exceedance, as they would in any development that proposes the conversion of, or increase in, residential accommodation over ground floor retail or other commercial uses in the B4 Mixed Use zone. In answer to this, the Applicant submits that the effect of deleting Level 5 and removing the exceedance would result in only one three-bedroom apartment facing east, and not two. Such an outcome would achieve the aims and objectives of important policy initiatives in a less effective manner. In more general terms, the deletion of Level 5 would result in a development of 12 and not 13 apartments. The Applicant does not advance grounds of financial viability or other complication to the proposal that arises by removing the exceedance, although this may be the case.

3. Thirdly, the written request asserts the proposal comprises conservation works that will improve the presentation of a building identified as a detracting item in the Oxford/Victoria HCA. I note here the heritage experts agree that while the existing building is not identified as either Victorian or Federation in style, the removal of detracting elements from the Victoria Street façade could result in the existing building achieving ‘neutral’ or ‘contributory’ status. While the Court can conceive of a possible nexus between the contravention of the FSR standard and the conservation works, absent an argument as to the nexus, this ground also does not do more than promote the benefits of the development as a whole.

84. Without the benefit of further explanation, the grounds advanced are not sufficient to justify the contravention of the FSR standard and so the Court’s power to grant consent is not enlivened.

Directions as to conditions

85. At the close of the hearing, parties sought directions to the effect that parties confer with the intent to narrow dispute within the competing without prejudice conditions of consent.

85. Parties were directed to file an agreed set of conditions of consent within seven days of the close of proceedings. Parties filed conditions of consent out of time on 17 February 2023, and a further set of architectural plans resolving drafting errors, but this is of no consequence given the Court is unable to entertain the grant of consent for reasons stated above.

Orders

87. The Court orders that:

1. The appeal is dismissed.

2. Development Application D/2021/1110 for the change of use of the existing building on the site to mixed use development comprising ground floor commercial premises, and 10 residential units and 3 x dual key above, including alterations and additions, is refused.

3. All exhibits are returned, but for Exhibits A, B, C, D and E.

……………………

T Horton

Commissioner of the Court

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Decision last updated: 21 February 2023