Stateland Central Pty Limited v Parramatta City Council

[2008] NSWLEC 1350

Land and Environment Court

of New South Wales

CITATION:

Stateland Central Pty Limited v Parramatta City Council [2008] NSWLEC 1350

PARTIES:

APPLICANT
Stateland Central Pty Limited

RESPONDENT
Parramatta City Council

FILE NUMBER(S):

10342 of 2008

CORAM:

Murrell C

KEY ISSUES:

Development Application - Modification Application :- mixed use commercial retail residential building, bulk and scale, impact on heritage items, FSR, height, streetscape and urban design.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Parramatta Local Environmental Plan 2007
State Environmental Planning Policy No. 65
Parramatta Development Control Plan

CASES CITED:

North Sydney CC v Michael Stanley [Court of Appeal May 1998]

DATES OF HEARING:

11/07/2008 and 14/07/2008

EX TEMPORE JUDGMENT DATE:

14 July 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Jackson, solicitor
of Pikes Lawyers

RESPONDENT
Mr P. Marincowitz, solicitor
of DLA Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

14 July 2008

10342 of 2008 Stateland Central Pty Limited v Parramatta City Council

This determination was given extemporaneously
and it has been edited prior to publication

JUDGMENT

1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act against Parramatta City Council’s refusal of a modification application to a mixed use commercial retail residential building at the property known as 8 Cowper Street, being 2-20 Cowper Street Parramatta. The subject site is on the southern edge of the City of Parramatta and is relatively proximate to the Harris Park Railway Station. It forms a southern edge of the City of Parramatta.

2 The site is zoned under the Parramatta Local Environmental Plan 2007 as B4 - ‘Mixed Use’ and the objectives of the zone include: to provide for a mixture of compatible land uses and to protect and enhance the unique qualities and the character of special areas within the Parramatta City Centre.

3 The development application for a 16 level building with basement parking was approved by the Parramatta City Council in 2005 and is well un construction. The mixed use development contains 240 units and some 420 square metres of commercial retail space at ground level. It is a block edge development to terms of Cowper Street coming to the boundary. It varies with the setback to the north and south boundary but is approximately a minimum of 4 metres setback from those boundaries. As such, the overall length of the building is some 96 metres. The proposed development has two towers and there is a 12 metre gap between the two towers at the upper levels. The towers are some 42 metres for the most part, reducing to some 31 metres for the upper levels.

4 The subject site is an L-shaped site. It has, as I stated, the main frontage to Cowper Street of 104 metres. The site has a total area of 4,426 square metres with 15% of the site, some 663 square metres contained within an L which is on the north-eastern side of the subject site and this forms the large commercial open space area with a pool for the units.

5 The subject development has a series of s 96 modifications. The modification before the Court today is to increase the number of floors to 17 floors and to increase the floor space ratio to 5.99:1 from 5.69:1 by the provision of an additional nine extra apartments. Four of these apartments would be on the top levels and the additional floor provided within the existing envelope. In fact, there is a slight reduction in the overall height of the proposal by some 2.24 metres although this will exceed the height limitation contained within the Parramatta Local Environmental Plan of 54 metres with an FSR of 6:1.

6 The Statement of Environmental Effects that accompanied the modification application states in summary that due to the increased FSR from the previous SREP 28 for Parramatta to the new LEP 2007 for Parramatta, the FSR has been increased from 5.5:1 to 6:1 and the applicant wishes to take the opportunity to provide for an amended plan while the building is in progress.

7 A site inspection was carried out in the presence of the parties on the first morning and the Court had the opportunity of understanding the context of the building and the adjoining area. The council in these proceedings says that the amendments proposed, that is by the addition of one unit to raise the level of the separation between the towers by one unit, one floor, and the provision of units on the shoulders, that is the north and south next to the towers, and the additional units on the top of the building, should not be approved. The contentions that came forward from the council are that the design review panel considered the application and its comments are as follows:

(1) The panel considers that its previous comments remain pertinent regarding the suitability of this site to accommodate the bulk and scale of the proposed development. In this case the L-shaped site has significantly contributed to excessive building bulk being placed on Cowper Street. The proposed addition of 0.3:1 FSR sought in the s 96 application without additional height, will further increase the bulk of the building.
(2) The panel notes that the applicant stated that the only reason for the s 96 is to achieve the higher FSR than previously approved. This was used as the only justification for the revised scheme.
(3) The proposed additional floor space creates a more slab-like built form. It is the panel’s view that the previous scheme which had greater height variation and separation of tower form was a preferred outcome.
(4) The panel’s view is that the proposed changes that the applicant argues are relatively minor in terms of density are responsible for significant diminution of SEPP 65 principles, built form and aesthetics. This is because the lowering of the overall height and the raising of intermediate height has resulted in a more uniform building mass and elevation compared to the more accentuated and articulated appearance of the approved scheme. And therefore refusal is recommended.”

8 The Council contends that the matter should be refused in terms of its bulk and scale.

9 On behalf of the Council evidence was submitted to the Court by Mr Rodney Jensen, a consultant architect planner, and on behalf of the applicant, evidence was given to the Court by Mr Geoff Baker, consultant architect planner, urban designer. The experts also provided a joint statement to the Court as well as verbal evidence.

10 Mr Jensen is of the opinion “the proposal will exacerbate what is an unhappy relationship with the surrounding area including heritage items.”

11 I note in terms of council’s controls that the subject site has a height limit of 54 metres under the new LEP. And there are surrounding sites on the opposite side of Cowper Street that have a 28 metre height control, Marian Street at the end of Cowper Street to the south has a 12 metre height restriction, and to the east there is 28 metre height limit. The Court also notes that the FSR opposite the subject site is 4:1, on the corner 2:1, Marian Street 2:1, the subject site being is 6:1.

12 In my assessment I have the opportunity of the reports that were prepared in respect of the original development application, shown in Exhibit 9. And it is noted in the council officer’s assessment, that heritage was not noted or there was no comment with respect to heritage, although I have been advised that the applicant submitted a heritage statement. The council officer when he originally recommended approval for the proposed development in 2005 stated,

“The proposed development is fully in keeping with the objectives of the city edge zone as it significantly enhances the provision of commercial space in proximity to the city core area, housing choice and affordability, adjacent to public transport and provides for streetscape improvements by the activation and use of a presently unattractive street frontage.”

13 I further note in that report, that the city centre DCP requires a maximum building depth of 12 metres. The maximum overall depth of this residential building is 16 metres. The report goes on to say:

“The building has a depth varying between 12.4 and 28 metres which does not comply with the council’s requirements. However. the units are oriented to address the street and the rear and to provide street surveillance. The individual units have varying depths of between ten and twelve and a half metres. The orientation of the units will also provide for appropriate solar access and cross-ventilation.”

14 The building that we see substantially commenced on the subject site did not require an architectural competition, which is now a requirement of the new LEP. The new LEP was gazetted in December 2007 and as I stated, it provides for a height limit of 54 metres, and there is also a changed definition of height limit. The LEP 2007 states that the objectives of the FSR is are to ensure the proposals for new buildings are assessed with due regard to the design excellence and built form provisions of this plan, and to provide sufficient floor space for high quality development for the foreseeable future.

15 It is noted that there are special provisions in the LEP for design excellence and that this clause applies to development involving the construction of a new building or external alterations to an existing building. 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, and in considering whether the development to which the clause applies exhibits design excellence, the consent authority must have regard to the following including:

• whether a high standard of architectural design materials and detailing appropriate to the building type and location will be achieved,
• whether the form and external appearance will improve the quality and amenity of the public domain,
• whether the proposed development detrimentally impacts on adjoining uses.

16 Proposed developments must also address heritage and archaeological issues and streetscape constraints. It must also have regard to the location of any tower proposed, the need to achieve an acceptable relationship with other towers on the same site or neighbouring sites in terms of separation, setbacks, amenity and bulk massing and modulation of the buildings and street frontage heights must be considered. The presentation of the podium to the street is some five storeys and built to the boundary at the lower level with the two residential towers setback.

17 On behalf of the applicant it was submitted that the provisions for design excellence do not apply as this is a modification application. The requirements of the LEP also mean that the development should be referred to the Director-General for concurrence, although I understand concurrence has been delegated. Although there are a number of provisions with respect to what needs to be considered when granting concurrence.

18 The heritage provisions appear at cl 35 of the LEP. As I stated from the documents and the assessment of the council it would appear that heritage was not a matter that featured in the original assessment reports. It has been raised during these proceedings, however given the shear size and magnitude of the approved subject building, raising heritage now for this modification before the Court cannot be considered seriously as of relevance for a s 79C merits assessment.

19 In terms of its context, in terms of its impact on surrounding development, clearly this building will be visually most prominent from many kilometres around Parramatta, and will continue to be prominent into the future when the area is further developed under the LEP controls.

20 The DCP Revitalising Parramatta City Centre Plan, that accompanies the LEP 2007 has a number of provisions relating to building form. That is “the relationship between building form and the street, underpin the character of the city.” In terms of the original assessment, this is rather absent in terms of an assessment of the contribution to the public domain of the subject building.

21 It is noted and it was submitted that there have been a number of design changes carried out to the building as approved with conditions and this is why some of the s 96 modifications have been submitted in response to the design review panel’s comments. The presentation of the building has evolved through the s 96 applications and I was informed this is partly in response to the review panel’s comments.

22 In my assessment I was referred by the parties to the matter of North Sydney Council v Michael Stanley a judgment in the Court of Appeal May 1998. This provides guidance of an assessment of s 96 modification applications. Clearly the Court is not in the position of reassessing the development as such and I must assess the modifications before me of the approved development as modified already. This does not provide for example, the Court to comprehensively assess the development for example, landscaping, the development is significantly below what is required in terms of landscaped area, 9.2% of the site area is provided as opposed the Residential Flat Code Building of 25%. It was submitted on behalf of the applicant that the L-shape provides for the opportunity to provide for good open space area for the subject development. My assessment is limited to what is relevant under s 79C to the modifications.

23 The Court was advised by the applicant if the Court was of the mind that in urban design terms that the infill of the unit at the middle of the proposal was considered to be unsatisfactory, that IT could be deleted. Similarly the shoulders, that is the additional units on the shoulders of the building could be deleted. Clearly the applicant’s preferred position is for the nine units to be provided as shown in the s 96 modification application.

24 I note that the additional four units provided at the top of the building provide for a reduction in the height of some 2.4 metres and they do not add to the bulk of the building. Mr Jensen did not have a great concern with the upper level units, but it was the infill of the middle core and the units on the shoulders that reduce the readability of the towers. He said: the building form can be seen from some distance. And clearly a large building that is of such prominence some 96 metres in length adjoining the street should be considered in urban design terms.

25 Mr Baker is of the view that adding nine more units is consistent with State Government policy of when consolidation and providing housing in the Parramatta City Centre and he does not consider there is any adverse consequences and there are no appreciable differences in terms of this prominent building by the modification. He is of the opinion that the desired future character is shown by this building and to quote:

“By complying with the development controls applicable to the site, the development meets the parameters set by the controlling authority to achieve the desired future character.”

26 He considers that the FSR can be maximised and this indicates the desired future character. On the other hand, Mr Jensen says:

“I disagree that mere compliance with controls of FSR and height results in desirable built form. Indeed there is no requirement that any development should be built to a limit. It should actually be treated as a maximum allowable provided undesirable impacts do not arise...
The proposed increases in floor space sought by the applicant reduced the character of the streetscape and views as measures of appropriate built form. They will make the interface with adjacent lower scale development to the north and the south which in my view is already unsatisfactory, even more unsatisfactory. The environment and context of this proposal including the South Parramatta Conservation Area and properties of heritage significance will not be well served by any increases and what I consider to be an already oversized development for this site, notwithstanding the fact that it complies with height and FSR controls under the applicable statutory instruments.”

27 In my assessment the maximum FSR and the maximum height limits are matters that should be considered in the context of the overall merits of a development application. The mere FSR height controls in themselves do not set the future character. They are indicative of what is permissible in an area, but it does not mean that they can be necessarily achieved on every site.

28 I am of the opinion that the constraint of this site being an L-shaped and leaving the L just in open space and concentrating the development on the large portion of the site, admittedly at some 85% of the site, it has resulted in a larger building than would be contemplated on a regular sized allotment. That is no excuse for allowing a further increase in the bulk of this building. The readability of the tower elements should be maintained and the infill unit for the middle core does not provide for an appropriate relationship in terms of the proportions of the towers above the middle core. On the approved plan that is, has already been somewhat in-filled by units and a further exacerbation of that relationship is not appropriate.

29 Similarly in terms of the shoulders, the shoulders should not be allowed because of their interrelationship with the adjoining residential flat building to the south and the religious establishment to the north of the site. I understand and appreciate that there are controls in place in the LEP which allow for a 6:1 FSR and the maximum height of 54 metres. That does not mean that one does not have regard to adjoining development and adjoining properties. There is already a minimal setback to the north and the south. This impact would be further exacerbated by in-filling of the north and south with additional units. It would also provide for a less articulated building in terms of the distinction of the various elements.

30 With respect to the units on the upper level, this in fact can be accommodated below what is the existing envelope. The applicant has provided further details in terms of the detailing and how the top of the building will then present. Mr Jensen has provided comments in this regard and I am satisfied that the additional units on the top of the building are ones that do to create further exacerbation of the building in terms of its bulk and presentation in the context of the immediate context, middle and further a field context of how this building will read in the landscape of Parramatta.

31 When I have regard to the urban design comments about lowering the towers and changing or modifying the design of the upper elements, in many respects the design was modified previously in the Revision E plans from the original proposal. There was a more defined demarcation of the top element of the towers in the original plans than in the approved E version. However I am satisfied that the proposal that comes before the court in this s 96 application will read similarly to the approved Exhibit E plans while at the same time providing four additional units.

32 The Court was referred to the relevant portion in the North Sydney v Stanley case of the creep factor and I am conscious that the court should not condone development by creep. And because zonings may change, FSRs may change from the inception of a scheme, does not necessarily mean that the design can be loaded up with further bulk to achieve a maximum FSR. In looking at the documentation, it is difficult to understand the design philosophy of the building to see in fact whether that had been undermined. There was little comment or no comment about the contribution of this building in terms of the public domain, in particular Cowper Street and its juxtaposition with adjoining development including heritage items in the vicinity.

33 It is understood that this area is undergoing change and I acknowledge this and clearly the LEP provisions for Parramatta will mean that there will be eventually significant redevelopment of the surrounding area. The important thing in terms of this s 96 application is to ensure that the development, that is its bulk and given the FSR, it is important that the detailed design does mitigate the impact of bulk when one has a juxtaposition of lower development within the vicinity which includes heritage items. Heritage was not raised as an issue in the initial assessment report either, and it is not something that I can address in this modification application apart from its relationship or context with the surrounding area in terms of s 79C.

34 The evolution of change as Mr Jensen said, he considers is unfortunate in terms of the original proposal reading as two distinct towers and there has been some definition lost in his opinion in terms of the treatment of the top element of the roof of the proposal that was approved in the revision E plans.

35 In my assessment I do not agree with MR Baker that the future character looks at maximum FSRs and maximum height limits. Clearly there is a package of controls which also includes landscaping. This development is clearly deficient in terms of the landscaping required for such a large development, or any development, which is a proportion of the site as such. Four metre setbacks with a ninety-six metre length of building is considerable in any context.

36 The constraints of a site must also be considered in trying to achieve or maximise the potential of a site. And clearly there are constraints in terms of the configuration of this site. It is simplistic to say that the future character is reflected in the FSR and the height limits. That does not take away from the fact that this area has been earmarked for redevelopment and that is reflected in the controls but in terms of urban design, the adjoining zones and the heights and FSRs achievable must also be considered, the placement of built form and mass needs to be considered in the context of a surrounding area when looking at any site.

37 Therefore on the basis of my assessment, the orders of the Court will be issued on the receipt of plans and conditions that reflect four units only at the upper levels and the s 94 contribution recalculated and conditions that reflect the materials, finishes et cetera as now shown in Exhibit J and an amended plan which shows the deletion of the middle unit and the shoulder units. Accordingly the formal Orders of the Court on the receipt of the above will be:

1. The appeal in respect of the property known as 8 Cowper Street Parramatta is upheld in part;

2. The s 96 modification application submitted to Parramatta City Council and as amended is approved; and

3. The exhibits are returned to the parties.

38 The only exhibits that I will retain for the file will be the amended set of plans and the amended conditions. And if the amended set of plans can be forwarded in an A3 version.

___________________

J S Murrell
Commissioner of the Court
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