The Owners - Strata Plan No 50723 v The Council of the City of Sydney

[2022] NSWLEC 1518

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

The Owners – Strata Plan No 50723 v The Council of the City of Sydney [2022] NSWLEC 1518

Hearing dates:

21-23 June 2022

Date of orders:

23 September 2022

Decision date:

23 September 2022

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld

(2) Development Application DA 2020/235 for alterations and additions to existing commercial building at 84 – 84b Pitt Street Sydney NSW 2000 is determined by the grant of consent, subject to conditions of consent at Annexure A.

(3) All exhibits are returned, except for Exhibits A, B, C.

Catchwords:

DEVELOPMENT APPLICATION – appeal against condition of consent – alterations and additions to existing commercial building – whether proposed development exhibits design excellence – effect on heritage significance of heritage item – pedestrian amenity in City of Sydney

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Sydney Local Environmental Plan 2012, cll 1.8A, 4.4, 5.10, 6.4, 6.21, Dictionary

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2000, cl 55

Texts Cited:

National Construction Code

Sydney Development Control Plan 2012

Walking Space Guide, Roads and Maritime Services 2020

Category:

Principal judgment

Parties:

The Owners – Strata Plan No 50723 (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
A Singh (Solicitor) (Respondent)

Solicitors:
Grace Lawyers (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2021/266021

Publication restriction:

No

Judgment

1. COMMISSIONER: The owners of a building known as the ‘Australian Business and Conference Travel House’, at No 84-84B Pitt Street, Sydney propose alterations and additions to the ground floor fronting Pitt Street, comprising works to the basement, lower ground and upper ground floors to accommodate new retail tenancies, services and a new outdoor terrace.

2. To this end, the owners, being the Applicant in these proceedings, lodged development application D/2020/235 (the DA) with the Council of the City of Sydney (the Respondent) on 17 March 2020.

3. The DA was subsequently determined by the grant of consent on 18 September 2020, subject to conditions of consent.

4. These conditions of consent are now appealed under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In particular, the Applicant seeks the deletion of Condition 2 which reads:

“Design modifications

The design must be modified in the following manners:

a) The external extension to the Pitt Street property boundary, depicted as all development west from gridline B in the approved floor plans are not approved and must be deleted;

b) The entrance to the basement retail space must be reconfigured to be within the existing building footprint;

c) The existing slab must be retained in order to negate flood issues.

Amended plans must be submitted and approved by Council’s Area Planning Manager prior to issue of Construction Certificate.”

5. The Applicant was granted leave to rely upon amended plans and other documents on 19 April 2022 (Exhibit C), and amended the development application by lodgement on the NSW Planning Portal. The amended application now comprises:

1. Basement level:

• Demolition of the existing fire stairs along the western boundary and internal walls.

• Excavation along the western site boundary (Pitt Street frontage) to accommodate a new basement entry stair.

• Amendments to location and size of plant room, fire control room, sprinkler pump room, communication room, grease trap, air conditioning plant and services.

• Creation of a new basement retail tenancy including sanitary facilities (RL.9.040) with a proposed floor to ceiling height of 2.94m. The retail fit-out will be subject to a future separate application.

• Creation of a new flood evacuation passage from the approved basement retail area to the fire egress corridor at the eastern end of the building.

• Preparation works at the southern eastern corner of the site (Penfold Lane frontage) to accommodate a chair lift and flooding barriers.

2. Lower Ground level:

• Demolition of internal walls and existing fire stairs along the northern boundary.

• Extension of the building including: New retail tenancy to align with the front boundary along Pitt Street adjacent to Penfold Lane with a 1:25 pedestrian access ramp; new lobby entry and 1:20 pedestrian access ramp to the revised lobby and new basement entrance stairs located at the north western corner of the site accessed via Pitt Street (adjacent to 80-82A Pitt Street).

• Construction of new parapet walls to the PMF level 13.3mAHD at the entrance to the basement and new retail tenancy along Pitt Street. New full height glazing above parapet walls. Construction of new parapet wall to PMF level along southern boundary near fire egress to PMF level of 15.4mAHD.

• Installation of four in-ground floor activated flood barriers.

• Installation of a platform lift along the southern boundary (adjacent to Penfold Lane).

• Relocation of coffee kiosk into new lobby area.

• New internal ramp within revised lobby area to service Lot 65 at the upper ground floor.

• New glass and metal roof between existing building façade and front property boundary to enclose the existing forecourt area.

3. Upper ground floor

• Extension to the south boundary including a mezzanine level, lift and outdoor terrace with planter boxes fronting Penfold Lane.

• Installation of a metal footpath awning above Pitt Street footpath.

• New external building identification sign above the glass infill podium comprising individual lettering, reading ‘Australian Business & Conference Travel House’ (0.35m (H) x 11.279m(L)).

• Installation of new in-ground flood activated barriers adjacent to the entrance of retail tenancy (Lot 65) along Penfold Lane to PMF level 15.4mAHD.

4. First floor:

• Construction of a new glass and metal roof with box gutter above the infill podium extension to Pitt Street.

• Construction of a new metal roof with box gutter above the outdoor terrace area fronting Penfold Place.

History of development on the site

6. The Amended Statement of Facts and Contentions (Exhibit 1) sets out the extensive history of development consent sought on the site, principally comprising proposals to reconfigure the forecourt fronting Pitt Street, introduce new awnings and an elevated terrace.

7. Relevantly, on 12 September 2016, development application D/2014/1847 was determined by the grant of consent under s 34 of the Land and Environment Court Act 1979 (LEC Act), subject to conditions (2016 Consent) (Exhibit 7).

8. In summary, the 2016 Consent provided for a terrace for use as an outdoor dining area to the south of the Pitt Street frontage and an enclosed stair leading to the basement on the north of the Pitt Street frontage, with entry stairs in the middle.

9. The Respondent distinguishes the merit of the 2016 Consent from that now proposed on three grounds.

1. Firstly, the proposal the subject of the 2016 Consent maintained sightlines to the adjoining Penfold Lane from pedestrians travelling south along Pitt Street.

2. Secondly, the 2016 Consent pre-dates works proposed for the Sydney Metro that will increase the number of pedestrians.

3. Thirdly, flooding issues were not identified at the time, but are now pressed.

The site and its context

10. The site is located on the eastern side of Pitt Street, between the intersection with Hunter Street and Martin Place.

11. The site has a primary frontage of 14.09m to Pitt Street, and a secondary frontage to the south of the site, along what is known as Penfold Lane, of 51.7m, giving the site a total area of 746m².

12. The site is legally identified as Lot 1 in DP 852540 and Lots 1 to 66 in SP 50723.

13. A 13-storey commercial building occupies the site, with a front setback to the boundary with Pitt Street of 4.6m, and a side setback to Penfold Lane of 3.14m.

14. According to the Further Amended Statement of Facts and Contentions prepared by the Respondent (Exhibit 1), the site is also located:

1. within the B8 Metropolitan Centre zone, according to the Sydney Local Environmental Plan 2012 (SLEP), in which commercial premises are permitted with consent, where consistent with the objectives of the zone which 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 within podiums that contribute to the character of the street.

•  To promote the efficient and orderly development of land in a compact urban centre.

•  To promote a diversity of commercial opportunities varying in size, type and function, including new cultural, social and community facilities.

•  To recognise the important role that Central Sydney’s public spaces, streets and their amenity play in a global city.

•  To promote the primary role of the zone as a centre for employment and permit residential and serviced apartment accommodation where they complement employment generating uses.

2. immediately south of a 14-storey commercial building known as the ‘former Bryant House’ at 80-82A Pitt Street that is listed for its heritage significance at a local level in Schedule 5 of the SLEP (the heritage item).

3. close to a 16-storey commercial building known as the Telstra Telephone Exchange building, at 76-78 Pitt Street, with a front setback to Pitt Street of 6.1m.

4. Immediately north of Penfold Lane, which comprises a right of way and easements of varying widths, providing public access from Pitt Street to Hosking Place.

5. In an area subject to flooding, according to the City Area Catchment Flood Study (Exhibit 2, Tab 7) and the City Area Floodplain Risk Management Plan (Exhibit 2, Tab 6), with indicative flood depths of 200mm expected to the Pitt Street frontage in the 1% AEP storm event, and 500mm in the Probable Maximum Flood (PMF).

6. In close proximity to the new Hunter Street Metro Station, and to the Martin Place Metro Station that will be accessible from Pitt Street via the through-site link formed by Penfold Lane and Hosking Place.

15. The proceedings commenced with an onsite view at which the above was observed by the Court, in the company of the legal representatives and the experts.

The issues

16. The contentions distilled from the Amended Statement of Facts and Contentions in respect of Condition 2 are summarised as follows:

1. The development does not exhibit design excellence as defined by cl 6.21 of the SLEP.

2. The proposed development adversely effects the adjoining heritage item.

3. The site is subject to flooding, with high hazard flood characteristics to the Pitt Street frontage.

17. In respect of flooding, Dr Brett Philips for the Applicant, and Ms Louise Collier for the Respondent, conferred in the preparation of a joint expert report marked Exhibit 4, and a supplementary joint expert report marked Exhibit 6, the result of which is agreement on all aspects.

Expert evidence

18. The Court was assisted by experts in the following disciplines:

1. In respect of built heritage: Ms Fiona Binns for the Applicant, and Mr Hui Wang for the Respondent, who conferred in the preparation of a joint expert report marked Exhibit 3.

2. In respect of planning: Mr Stephen Kerr for the Applicant, and Ms Jessica Joseph for the Respondent.

3. In respect of urban design: Mr Rohan Dickson for the Applicant, and Ms Cindy Ch’ng for the Respondent.

4. In respect of Pedestrian Traffic: Mr Craig McLaren for the Applicant, and Dr Anne Matan for the Respondent.

19. On 6 June 2022, the Registrar directed the experts in planning, urban design and pedestrian traffic to confer and prepare a joint expert report by 14 June 2022, but which was filed with the Court on the eve of the hearing.

20. At the commencement of the hearing, Mr Staunton, counsel for the Applicant, advised of amendments made to the architectural plans subsequent to the filing of the appeal, summarised as follows:

• Downpipes added in plan and section.

• Various clarifications and amendments in response to queries from the Respondent, contained in attachments to the joint expert report at [19].

• Confirmation of the type of flood barriers proposed, contained in Appendix B to the Flood Emergency Response Plan (Exhibit 2, Tab 8).

21. The experts were directed to confer on the amendments, and to disambiguate the joint expert report at [19] by particularising the contribution of the pedestrian traffic experts separately.

22. The pedestrian traffic experts filed a joint expert report on 22 June 2022, marked Exhibit 8.

23. The joint expert report of the urban design and planning experts was tendered on 23 June 2022, marked Exhibit 9.

24. I note here that the Applicant sought to also rely upon a single expert report in respect of Access, dated 14 June 2022, prepared by Mr Mark Relf. The Respondent objected to the tender on the grounds that Mr Relf’s report did not address a matter in contention, was not provided in a timeframe to permit the Respondent to engage its own expert on its terms, and so was prejudicial to the Respondent. I admitted Mr Relf’s report as Exhibit D, subject to weight, noting the late serving of the report by the Applicant, and inviting submissions from the Respondent as necessary.

25. The Applicant was granted leave on the third day of the hearing, unopposed, to rely upon amended architectural plans, tendered as a final consolidated set. While the amendments appear to comprise the removal of errors and omissions from the drawings, and so to not amend the development the subject of the development application, the Respondent assisted the Court by confirming it agreed, as the relevant consent authority, to the Applicant amending the application, insofar as that may be considered to have occurred, in accordance with cl 55(1) of the Environmental Planning and Assessment Regulation 2000, by the architectural drawings marked Exhibit G.

Whether the development exhibits design excellence

26. The Respondent submits that the proposed development fails to deliver the highest standard of architectural and urban design, being the relevant elements of the objective of cl 6.21 of the SLEP.

27. The terms of design excellence, applicable to the DA, are set out at cl 6.21 of the SLEP, in the following terms:

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.

28. The experts address their considerations to provisions of the SLEP current at the time of conferring.

29. However, it is commonly held that the SLEP was amended on 26 November 2021 with the effect of amending cl 6.21 of the SLEP in the manner addressed by the experts. However, the savings provision at cl 1.8A(5)(a) of the SLEP provides that the amendments do not apply to a development application made but not finally determined before the commencement of the amendments as is the case here.

30. That said, the parties also acknowledge the amendments to cl 6.21 are virtually identical to the provisions that apply to the DA the subject of the appeal, and so it is of little or no consequence.

31. For clarity, I will consider the matters contained in cl 6.21 of the SLEP by adopting the numbering of the provisions applicable to the DA, and not in the form addressed by the experts.

32. The parties generally agree, as I do, that not all of the matters for consideration at cl 6.21(4) are relevant to the particular circumstances of the proposed development. To that end:

1. There are no view corridors detrimentally impacted by the proposal (subcl (c)).

2. The use proposed is permissible within the B8 zone and so the land may be considered suitable for the proposed development (subcl (d)(i)).

3. The proposed uses and use mix are consistent with the existing use and use mix (subcl (d)(ii)).

4. The proposal is not for a tower, and so the location and relationship to other towers is not relevant (subcl (d)(iv)).

5. The development application addresses Section J of the National Construction Code, and so subcl (d)(vii) is addressed, to the extent it is applicable.

6. As there is no landscape proposed, its integration and degree of excellence is not applicable to the development the subject of the development application (subcl (d)(xiii)).

33. While evidence on heritage, town planning and the pedestrian network was adduced respectively in their own right, as the scope of the design excellence provisions also identify those issues within the rubric of design excellence, I will first adopt design excellence as the lens through which to consider each.

34. In doing so, I accept the Applicant’s submission that the operative provision at cl 6.21(3) of the SLEP is in the following terms:

(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.

35. The means by which the opinion at subcl (3) is to be formed, is after consideration of those matters at subcl (4).

36. That said, those issues set out at cl 6.21(4)(a) and (b) are, in my view, somewhat contingent upon findings with respect to the issues within subcl 6.21(4)(d). For instance, whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved (subcl (4)(a)), cannot be isolated from consideration of the bulk, massing and modulation of buildings at subcl (4)(d)(v), or how streetscape constraints at subcl (4)(d)(iii) are addressed, as all are aspects of architectural design, or from the impact on any special character area (subcl 4(d)(xi)) which clearly relates to the location of a building and its type in certain circumstances.

35. Likewise, whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, being a consideration required by cl 6.21(4)(b) of the SLEP, is inseparable, in my view, from considering the impact on, and any proposed improvements to, the public domain (subcl (4)(d)(x)), and the achieving of appropriate interfaces at ground level between the building and the public domain (subcl (4)(d)(xii)).

36. Those matters set out at subcl (4)(a)-(c) are posed in terms of ‘whether’ the subject of the development application achieves certain things whereas those matters set out at subcl (4)(d) are posed in terms of ‘how’ the proposal addresses certain matters.

37. Accordingly, I will first consider those matters at cl 6.21(4)(d) of the SLEP, before forming an opinion as to the matters that are, relevantly, at cl 6.21(4)(a) and (b) of the SLEP.

Heritage and streetscape constraints

40. In respect of the heritage issues and streetscape constraints required of cl 6.21 (4)(d)(iii), the Court heard the evidence of both the heritage and town planning experts.

41. The heritage experts identify three issues that arise from the proposal, including:

1. the blockage of the colonnade to the heritage item;

2. the impact on views to the heritage item, and

3. whether the design of the proposed development is sympathetic to the heritage item.

42. The heritage item is attributed to noted Australian architect Emil Sodersten, dating from 1939. A statement of significance for the heritage item is appended to the joint heritage expert report (Exhibit 3, Appendix B).

The former Bryant House is part of an ongoing tradition of commercial centralisation in the CBD. Its construction as an investment underlines the value of city properties for these purposes. An outstanding work of Architecture epitomising the functionalist tradition of the 1930s. It earns the description Art Deco through the interpretation of "decoration" in the geometric modelling of the building envelope, ie. the decoration and structure are the same. The dynamic faceted facade is a landmark in the townscape character of this section of Pitt Street. The innovative use of new materials and new forms records a "watershed" in architectural thought and a new direction for CBD commercial building. It is a major office building designed by Emil Sodersten being similar to his earlier City Mutual Life building, at 60 Hunter Street, of 1936. It was once considered to be the most modern building of its kind in Australia

43. I note the statement of significance is also in the following relevant terms, under ‘Further comments’:

“High significance: External building form, scale, the entire exterior, including north and both side walls, ground floor entry lobby, stair and lifts. Low significance: Modified interior office spaces, ground floor arcade.”

44. It is commonly held by the experts that the colonnade at street level is not original, but instead was created sometime in the 1980’s when the original façade at the ground level street frontage, depicted in Exhibit E, was modified.

45. The experts differ on the value to be ascribed to the colonnade. Mr Wang cites Council records to suggest the colonnade was created to improve pedestrian access, responsive to a Pedestrian Access Plan introduced by the then Council in 1974, and which connects the forecourt of the subject site, with the forecourt at the Telstra Building to the north.

46. Ms Binns accepts the colonnade provides a public benefit, but this is in terms of the contribution it makes to the public domain, rather than to heritage, and closure of its southern access would not entirely remove the benefit provided by the remaining colonnade.

47. In that regard, the Applicant submits that the proposal is consistent with the 2016 Consent. Then, as now, a solid wall was proposed along the northern boundary of the site, closing off the southern opening of the colonnade, requiring a pedestrian using the colonnade to deviate and return to the footpath when travelling south.

48. Contemporaneous to the colonnade, windows were added above to the south and north of the heritage item, along with a return face of polished granite at the ground floor, neither of which the experts consider to be of high significance.

49. According to Ms Binns, the southern windows lack the refinement of the original windows fronting Pitt Street, given they are wider, with a different arrangement of panes, in aluminium, not steel framing, and with different brick detailing.

50. Notwithstanding the agreement at [48], Mr Wang believes the southern windows reinforce the Art Deco character of the heritage item by adding interest.

51. The height and setback of the proposed development fronting Pitt Street will obscure the southern façade of the former Bryant building at Ground floor and Level 1, and will cover one south facing window at that location.

52. The heritage experts agree that the southern elevation of the building was not originally visible at the lower 4 storeys due to the bulk and setback of a building formerly on the subject site, as depicted in an image in Exhibit E.

53. Ms Binns regards the design of the proposed addition west of gridline B appropriate as, firstly, it aligns its awning to the prominent datum set by development adjoining to the south, and with the distinctive windows on the heritage item fronting Pitt Street, and secondly, because it is glazed, it appears lightweight and of lesser bulk and scale when viewed in context with the heritage item.

54. By contrast, Mr Wang considers the large areas of glazing to be at odds with neighbouring buildings that generally display a high ratio of solid to void above ground level, and believes the columns are both slim and unnecessarily complex in appearance, contrasting with the solid masonry evident in the vicinity. Overall, the proposal neither complements or reinforces the character of the heritage item, nor is it sympathetic to its setting or significance.

55. The objective of Section 3.9.5 of the Sydney Development Control Plan 2012 (SDCP) is in the following terms:

“Ensure that development in the vicinity of heritage items is designed and sited to protect the heritage significance of the item.”

56. With respect to cl 6.21(4)(d)(v) and (vi), I note the bulk, massing and modulation of buildings, and the street frontage heights, are the subject of dispute between the experts, initially as to whether Sections 4.2.2 and 5.1.1 of the SDCP apply.

57. In general terms, the planning and urban design experts agree that the predominant built form typology in the Central Sydney area is a podium building with any tall building element setback above. Evidently, the existing building cannot be so described.

58. According to Mr Dickson, the existing building was designed as a tower, with a forecourt set back from Pitt Street, and a change is now proposed that is, in Mr Dickson’s view, consistent with the provisions determining the desired future character at Section 5.1.1 of the SDCP.

59. The existing building typology is, according to Mr Dickson, found elsewhere in the CBD, and in this portion of Pitt Street. However, that does not mean the typology is precious or must be retained. Rather, the proposal seeks to match other buildings in the vicinity that have zero setbacks and will provide an active street frontage.

60. According to Ms Joseph, when properly understood, Section 4.2.2 of the SDCP applies to the site because no statement explicitly excludes its application, as it does for Sections 4.2.3.6, 4.2.5.1 and 4.2.5.2. Furthermore, the Respondent submits that no inconsistency exists between Sections 4.2.2 and 5.1.1, so Section 5.1.1 of the SDCP does not prevail to the extent of any inconsistency.

61. In any event, an analysis of the setbacks in the immediate vicinity of the site demonstrates the existing setback to Pitt Street serves to beneficially extend the footpath in an area that is highly pedestrianised, and is forecast by the Central Sydney Planning Strategy and Town Hall Precinct Public Domain Plan to become more so.

62. To this end, the existing setback provides pedestrian permeability, allowing pedestrians to ‘cut the corner’ and enter Penfold Lane from Pitt Street, or to enjoy ‘breathing space’ when moving in a north-south direction along Pitt Street. In support of this position, Ms Ch’ng relies on video evidence, appended to Exhibit 8.

63. In general terms, Ms Ch’ng’s written evidence is that the form of the proposal to infill what she describes as the ‘forecourt’ to the street does not deliver the highest standard of urban design, and is not appropriate to its location as it removes the setback which changes the ‘type’ of building from a tower with a forecourt, to a tower with a 2-storey podium, but in a manner that is inconsistent with Section 5.1.1 of the SDCP.

64. As it is put by Ms Joseph, at its most simple, a proposal exhibiting design excellence should respond to its location and site constraints, including:

1. to the adjoining heritage item, and its colonnade, consistent with cl 5.10 of the SLEP and Section 3.9.5 of the SDCP.

2. The immediate setting of adjacent buildings and street setback, consistent with Section 4.2.2 of the SDCP.

3. Bulk, massing and modulation of buildings, consistent with Section 5.1.3.2 of the SDCP.

4. Materials and detailing appropriate to the host building type, consistent with Section 5.1.4 of the SDCP, and in respect of which, Ms Ch’ng believes the proposal fails to respect the innate geometry of the existing building, imposing an asymmetrical steel-and-glass form on an otherwise symmetrical masonry façade.

65. The chapeau to Section 4.2 states, relevantly:

“The following objectives and provisions apply to residential flat, commercial and mixed use developments only.

Not all provisions in this Section apply to development in Central Sydney and Green Square. This section should also be read in conjunction with Sections 5.1 Central Sydney and 5.2 Green Square under Section 5 Specific Areas.”

66. The provisions relating to building setbacks, at Section 4.2.2.1 include, at Provision (1):

“Setbacks are to be consistent with the setbacks shown in the Building setback and alignment map. Where no setback or alignment is shown on the map, the setback and alignment must be consistent with adjoining buildings. When the setback or alignment varies, either the adjacent or average front setback or alignment is to be adopted.”

67. Mr Kerr is of the view that as the Building setback and alignment map referred to in Provision 1 is deemed ‘not applicable’ on the relevant Council webpage, then it must follow that the provision itself is considered by the Respondent to be likewise ‘not applicable’, which is a circumstance provided for at [65] given not all provisions in Section 4.2 apply to development in Central Sydney.

68. I accept Mr Kerr’s position on the application of Section 4.2.2. The only conclusion that can be drawn from the statement ‘not applicable’ on the Council webpage is just that. Furthermore, the chapeau to Section 5.1 of the SDCP is likewise clear in its applicability, stating that:

“This Section applies to the land identified as Central Sydney in Figure 5.1 Specific Areas.

5.1.1 Built form controls

Built form controls include:

• Street Frontage Heights

• street, side and rear setbacks

• separations; and

• massing and tapering.

The controls outline the desired future form of Central Sydney and provide the tests to which the consent authority must be satisfied in order to demonstrate compliance with the relevant requirements of Sydney LEP 2012, including Clause 6.16.”

69. According to Ms Joseph, the proposal is inconsistent with the Built Form controls in Section 5.1.1 of the SDCP as a street frontage height of 6.525m is proposed, where a height-to-street width ratio of 1:1 applies. Given the width of Pitt Street, the applicable street wall height is in the order of 20-35m, as shown on Figure 5.2 at Section 5.1.1.1 of the SDCP.

70. Mr Dickson acknowledges that the street wall height does not comply with Figure 5.2. However, he relies on a streetscape analysis at Attachment 9 of the joint report that he says demonstrates a consistency between the proposal and No 92 Pitt Street. While No 92 is located in the Martin Place Special Character Area, unlike the subject site, the buildings are read together in the streetscape and so consistency is desirable.

71. Furthermore, the provisions of the Special Character Area apply to the three buildings south of the subject site, and so the desired future character of this portion of Pitt Street will be shaped by the application of those.

72. While the proposal clearly departs from the street wall height control preferred by Figure 5.2 at Section 5.1.1.1 of the SDCP, the proposal is in the vicinity of a heritage item and so both the General Provisions at Section 3.9.5 of the SDCP, and Heritage provisions for Specific Areas at Section 5.1.3.2 of the SDCP apply.

73. For the reasons that follow, I find the proposal achieves both the objectives and relevant provisions of both Section 3.9.5 and Section 5.1.3.2:

1. By departing from the preferred street wall height, the proposal retains a greater view of the remaining levels of the southern façade above Level 1 when viewed from a location south of the site (Section 3.9.5 Provision (4)(d)), provides an adequate area around the building to allow interpretation of the heritage item (Section 3.9.5 Provision (4)(a)), and considers the ability to view and appreciate the heritage item from Public Places (Provisions 5.1.3.2 (2)).

2. Aligning the topmost height of the proposed fascia to the brick banding to the south elevation of the adjoining heritage item, and the lintel to original windows fronting Pitt Street, demonstrates a respect for the proportions (Section 3.9.5 Provision (3)(b)) and materials (Section 3.9.5 Provision (3)(c)) of the heritage item, while limiting any obscuring of the heritage item to only the lower colonnade, which is identified as having lower significance.

3. As stated above, the alignment of proposed elements with those of the adjacent heritage item also respects and reinforces the historic scale, form, modulation, articulation, proportions, and materials that contribute to the heritage significance of the adjacent heritage item (Provision 5.1.3.2 (1)).

4. The significance of the heritage item is primarily vested in what the statement of significance describes as the “dynamic faceted façade”, and the “faceted vertical fenestration runs almost the full height of the building while fin elements carry over the facade parapet emphasising the verticality of the design”. These features, and views to them, are wholly unaffected by the proposal.

5. Finally, I do not accept Mr Wang’s assessment at [50] that the south facing windows, added later and without regard to the materials, proportion or treatment of original fenestration ‘reinforce the Art Deco character of the heritage item’, and so I consider the covering of one of them to have no adverse impact on the heritage item.

74. I also find the reasons above adequately address how the proposal responds to the heritage issues identified at cl 6.21(4(d)(iii) of the SLEP.

75. The proposed development is primarily for works fronting Pitt Street. As this is the only public street from which vantage point the proposal can be viewed, it is appropriate for the streetscape constraints at cl 6.21(4)(d)(iii) to be considered in conjunction with the bulk, massing and modulation of buildings, and street frontage heights at cl 6.21(4)(d)(v) and(vi) of the SLEP.

76. For the reasons set out at [73], the proposed street wall height is acceptable in heritage terms. In terms of the street frontage height and streetscape constraints, I accept Mr Dickson’s analysis at [70] that the proposal demonstrates certain characteristics that are consistent with No 92 Pitt Street, including the street wall height presenting to Pitt Street. In my view this is demonstrated in Photomontage 1, DA-08 (Exhibit G) in which the two properties can be seen in context from a position on Pitt Street opposite the heritage item, looking south towards Martin Place. A visual link between the two properties is formed in the photomontage from this location by the awning to Nos 86-88 which further extends a lower datum beyond the Martin Place Special Character Area to the subject site.

77. Adopting and extending the lower street wall height of No 92 Pitt Street qualifies the proposal, in my view, as respectful of a prominent form or feature of a building within the Martin Place Special Character Area and so the impact on the Special Character Area can be said to also be respectful (cl 6.21(4)(d)(xi)).

78. Ms Ch’ng’s concern at imposing an asymmetrical steel-and-glass form on an otherwise symmetrical masonry façade is addressed, in my view, precisely by the adoption of glazing to the Pitt Street frontage. The transparency of the frontage visually connects, in both plan view and the photomontage images, the tripartite geometry of the glazed frontage with the tripartite structural logic of the existing building that establishes the setout of firstly, services such as lifts, amenities and fire stairs, secondly the lobby, and thirdly, the retail spaces visible from Pitt Street footpath.

79. The result, utilising glass and travertine-clad columns, appears to satisfy Section 5.1.4, Provision (2)(b) of the SDCP for a building exterior that, given its transparency, is predominantly light in colour, and through which a sightline is possible so that the movement conflicts identified by Ms Ch’ng are likely to be foreseen and averted.

80. While the proposal is not predominantly masonry in character, in contradiction to Provision (2)(a)), in my view this departure is acceptable given the proposal is for alterations and additions to an existing building that is predominantly precast concrete, and immediately adjoins the heritage item that is masonry. I accept that in such circumstances it may be appropriate for a distinction to be drawn from the materials and finishes in the existing buildings through a transparent, lightweight presentation adjoining a solid masonry form as in this case.

81. Accordingly, I find the Applicant has demonstrated how the proposed development addresses the relevant streetscape constraints (subcl (4)(d)(iii)), an appropriate bulk, massing and modulation (subcl (4)(d)(v)), and a street frontage height that is respectful of its location (subcl (4)(d)(vi)).

82. The proposal also seeks to remove the existing stair access to the elevated lobby by provision of ramps shown at 1:20 gradient which I accept improves access to and from the public domain (subcl (4)(d)(x)), and achieves an appropriate interface at ground level between the building and the public domain (subcl (4)(d)(xii)) in that it provides more equitable access for differing mobilities, deliveries, prams and the like while also integrating flood barriers.

83. Having considered those matters that are relevant to the proposal under cl 6.21(4)(d) of the SLEP, I also conclude that the architectural design, materials and detailing is of a high standard and appropriate to the building type and location, in accordance with cl 6.21(4)(a) of the SLEP.

Pedestrian traffic evidence

84. The following elements of design excellence were considered by the pedestrian traffic experts, drawn from cl 6.21(4) of the SLEP:

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

…

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

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

…

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

…

85. At the heart of the disagreement between the pedestrian traffic experts is the appropriate method to determine the Level of Service (LoS) in pedestrian environments.

85. Mr McLaren prefers what is known as the Fruin method, which he describes as an established assessment method endorsed by agencies of the state and Australian governments.

86. Dr Matan prefers the method set out in the Walking Space Guide (WSG) (Ex 2, Tab 12), which is described, at p 6, in the following terms:

“This guide is designed for comfortable walking on streets; this is different from the widely used standards developed by John J Fruin who studied efficiency of movement within transport facilities for the New York Port authority in the early 1970s. Fruin supported development of local standards to suit local social norms which are different from those more recently development London for example. Relatively, Australians have a clear preference for more space.”

88. The experts also disagree on the contribution made by the forecourt to pedestrian behaviour in the vicinity of the site.

89. Dr Matan considers the forecourt to be a common desire line used by pedestrians moving from Pitt Street to Penfold Lane, and vice versa. That desire line also provides “breathing space” which is important for pedestrians who may wish to pause, take a phone call or the like.

90. This breathing space is particularly important given the increase projected in pedestrian numbers resulting from the completion of the Metro stations nearby, forecast in the ‘Sydney Metro West – Rail Infrastructure, stations, precincts and operations Environmental Impact Statement, Technical paper 1 – Operational Transport’ (‘Metro figures’) (Ex 2, Tab 14).

91. Mr McLaren notes the Metro figures do not rely on the forecourt for its conclusion that the peak flow of pedestrians along Pitt Street, before and after completion of the Metro stations, provides a LoS rated ‘A’.

92. Mr McLaren asserts this may be because, as he regards it, the forecourt is a ‘destination’ space largely used by users of the building on the site, on private property. Likewise, maps produced by the Respondent, at Attachment 6, fail to identify Penfold Lane as a through-site link or, at Attachment 7, to make any reference to Penfold Lane whatsoever.

93. The experts agree there are no pedestrian counts for Penfold Lane, and that the Metro figures are derived using the Fruin method, and not the method preferred by the WSG. While opinions differ as to the certainty of the fact, the experts entertain the joint assumption that the focus of the Metro figures is on the intersection closest to the Metro stations. That said, the experts differ as to the degree of loss or gain in pedestrian numbers as one moves further from the intersection.

94. The experts do agree the width of Pitt Street footpath, excluding forecourts, the colonnade and other setbacks, is 3.6m.

95. However, Dr Matan considers the LoS identified in the Metro figures, shown to be LoS A, to be flawed as it is not calculated by applying a ‘buffer’ to obstacles on the footpath as best practice dictates. In the circumstances of the site, the relevant obstacle is a smart pole/Telstra kiosk that creates a pinchpoint of 1.6m-1.8m. So understood, the LoS is more likely an LoS of D or E.

96. Mr McLaren’s experience is to calculate the LoS by means of averaging the width across the subject area, not by reference to a particular pinch point. Furthermore, adopting the projections in the Metro figures still results in a LoS A outcome.

97. This is further supported when Dr Matan’s figures, at par 63 of the joint report, are understood using the unit of pedestrians/minute/metre, common to the Fruin and WSG methods. Expressed in these terms, Dr Matan’s figures, applied to the width of the footpath, are consistent with a LoS A.

98. The figures relied on by Dr Matan, contained in Attachment 9, are figures held by the Respondent, but not publicly available. Furthermore, the figures are produced by a consultant adopting what is known as the ‘Jan Gehl method’ where pedestrian counts are taken over a 10 minute period, multiplied to arrive at a total pedestrian count per hour. Given what Dr Matan describes as privacy considerations, the precise date and location at which those pedestrian counts at Attachment 9 are taken is unknown.

99. As Mr Staunton puts it, that uncertainty precludes testing of the figures against variables of the day, such as weather, which may suppress pedestrian counts, or a mass event such as protest action in Martin Place that may inflate figures.

100. The Applicant also submits the forecourt is not identified in the City of Sydney City Plan 2036 (Ex 2, Tab 16) as part of the Liveable Green Network, so should not be defined as part of the primary pedestrian network.

101. Instead, weight should be given to recent works undertaken by the Respondent to improve the footpath on the western side of Pitt Street, adjacent to the Pitt Street bicycle lane (Exhibit 8, Attachment 4). To the extent increased pedestrian numbers are projected, such work increases footpath capacity.

102. Even if footpath widening were required on the eastern side of Pitt Street, the public footpath cannot encroach into the site as it is private property and not public domain.

103. Furthermore, as Mr McLaren puts it, even if the forecourt is developed as proposed and the ‘short cut’ between Pitt Street and Penfold Lane were blocked, the LoS is unaffected.

104. The proposed development blocks visual and physical access across the forecourt of the site to Penfold Lane from Pitt Street footpath. Ms Joseph is concerned the ‘narrower throat’, caused by the removal of the access, may result in conflict between pedestrians travelling north-south on Pitt Street, and those entering and exiting Penfold Lane.

105. In Ms Joseph’s view, design excellence can only be achieved if the interface with the public domain is consistent with Sections 3.1.1.3 ‘Lanes’ and 3.2.2 ‘addressing the street and public domain’ of the SDCP, and if the impact on the public domain to Pitt Street and Penfold Lane, its visual impact, the pedestrian traffic, minimisation of crime and anti-social behaviour is consistent with Section 3.13 of the SDCP.

106. I accept Ms Joseph’s view that the existing setback to Pitt Street serves to beneficially extend the footpath in an area that is highly pedestrianised, and is likely to become more so. However, that benefit is provided by an allotment in private ownership, and which is not burdened by an easement requiring the reservation of that space for that use.

107. I also am less convinced that the setback permits any great number of pedestrians to ‘cut the corner’, and so facilitate movement into Penfold Lane, because the direct connection between the setback and Penfold Lane is obstructed by signage, poor lighting and a small change in level. To make the connection requires the knowledge that a deviation up the stairs and across the building entry will deliver a pedestrian into Penfold Lane, through an opening that cannot be seen from the colonnade.

108. I consider this to be no more direct or obvious than the connection likely to result in a post-development scenario where Penfold Lane meets Pitt Street perpendicularly, and likewise requires knowledge of its location and its connection to Castlereagh Street.

109. As for the volume and behaviour of pedestrians, I accept Mr McLaren’s evidence, uncontested, that the pedestrian counts relied on by Dr Matan at par 63 of the joint expert report did not divide those counts “per metre”, and I accept that the LoS forecast in the Metro figures is LoS A, classified in Figure CM2 of the joint report as ‘free circulation’. This forecast is determined using the Fruin method, which I accept is a well-establish method, and which forms the basis of Mr McLaren’s own assessment. Furthermore, I also accept that the LoS is unaffected by the proposed development.

110. Undoubtedly, the provision of greater space in which pedestrians can move is a good thing. The WSG encourages the same by providing guidance on what is known as kerbside and active building edge buffers, a passing zone and the like. However, I do not understand the WSG to impose on a property owner an obligation to provide curtilage at the frontage of a site to accommodate any greater level of comfort than that measured by a well-established method as being a LoS A.

111. I also consider the works to upgrade what is known as the ‘active travel’ aspects of Pitt Street by the Council, including footpath, cycle path and an intermediate zone between the two, goes some way to catering for the pedestrian traffic in the area of the site, and particularly as the west of Pitt Street, where the works are located, are also where the entrances to future Metro stations are located.

112. For the reasons set out above, I find the proposed development addresses the pedestrian access and circulation requirements and, to the extent it is reasonable for a development on privately held land to do so, the permeability of the pedestrian network, in accordance with cl 6.21(4)(d)(ix) of the SLEP.

113. Accordingly, for these reasons, and for those summarised at [82], I find the form and external appearance of the development will improve the quality and amenity of the public domain, in conformity with cl 6.21(4)(b) of the SLEP.

Conclusion

114. I am therefore satisfied that the proposed development exhibits design excellence in accordance with cl 6.21 of the SLEP.

115. I have also considered whether a heritage management document is required to assess the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item, in accordance with cl 5.10 of the SLEP. As stated at [74], I find the proposal acceptable in terms of its affect on the adjoining heritage item.

116. Accordingly, I find the proposed development warrants the grant of consent under s 4.16 of the EPA Act, subject to conditions of consent.

Conditions are disputed

117. At the close of proceedings, the Court directed parties to confer on the final form of conditions of consent. In the event conditions are not agreed, parties were directed to provide without prejudice conditions of consent with short submissions on those conditions in dispute no later than 4pm, 8 July 2022.

118. On 12 July 2022, the parties by consent sought an extension, which was granted, until 4pm 15 July 2022.

119. On 15 July 2022, the Applicant filed its preferred conditions of consent and written submissions.

120. On 19 July 2022, the Respondent provided the Court with its preferred form of the conditions of consent, annotated where disputed.

121. The upshot of the competing conditions of consent is that three conditions are disputed.

Condition 2(a) – glazing

122. Condition 2(a) deals with the glazing at the southern boundary of the proposal.

123. The Respondent’s preferred wording of the Condition is:

“The glazing of the external wall along the southern boundary of the proposed extension from gridline B to the street boundary must be clear and untinted and must not be obscured by any fit-out or signage to maintain sightlines to and from Penfold Lane and Pitt Street.”

124. The Applicant submits that the sightlines between Pitt Street and Penfold Lane will be maintained so long as the glazing is clear and untinted, and any requirement to maintain an area free from fit-out or signage effectively requires that there be no development within the southern corner of the proposed retail space, identified as Lot 64.

125. As stated at [79], ensuring transparency in the materials at the intersection of Pitt Street and Penfold Lane assists in averting pedestrian conflicts.

126. A careful reading of the architectural plans, and survey levels in this corner of the site reveal the retail space, at RL 13.070 AHD, is raised 97mm above the Pitt Street footpath directly to the west, from where a sightline to Penfold Lane would be obtained. The RL at the top of the low wall described as a ‘parapet’, depicted on the West elevation, is 13.3 AHD.

127. When these levels are understood, it is clear that a sightline will be maintained at this corner so long as fit-out and signage is not placed within a certain zone that would otherwise have the effect of obstructing the sightline.

128. This zone might be thought of akin to a horizontal window with a sill height of 1200mm, and a head height of 2000mm. Applying the logic of such a ‘window’ at this corner, and accounting for the 97mm difference in height between the retail space and Pitt Street footpath, provides flexibility for the operator of the retail space, while being an enforceable condition that is easily applied on site over time.

129. Accordingly, the Court imposes Condition 2(a) in the following terms (emphasis added):

The glazing of the external wall along the southern boundary of the proposed extension from gridline B to the street boundary must be clear and untinted and must not be obscured by any fit-out or signage within a zone measured at 1100mm above the finished floor level of the retail space, RL 13.070, and below 2000mm above the finished floor level of the retail space to maintain sightlines to and from Penfold Lane and Pitt Street.”

Condition 2(c) - Signage

130. I note here that the precise location and relationship of the signage was not consistently shown on architectural drawings at the commencement of the hearing. However, it is now understood the signage is affixed to the fascia of the proposed building, and is not fixed to, or standing on the fascia of the awning.

131. The Applicant also proposes the removal of the existing building identification sign, which it accepts is contrary to Section 3.16.3 of the SDCP

132. The Respondent holds that the proposed signage, shown on DA-04 (Ex G), is an uncharacteristic element in the streetscape that does not serve its purpose as the awning conceals it from view to a pedestrian on the eastern side of Pitt Street.

133. Equally, Ms Ch’ng and Ms Joseph acknowledge there is no control in the SDCP that prevents or precludes signage in the manner proposed.

134. The Respondent’s preferred wording of Condition 2(c) is as follows:

The awning must be redesigned:

To have a maximum fascia depth of 350mm, width of 2.45m, and height to match the awning height of the neighbouring development at 86 - 88 Pitt Street;

To be continuous in design for the full width of the Pitt Street building frontage with no breaks;

To be a predominately a metal box awning type, and not a fully glazed awning.

To provide a minimum setback of 1m 1.5m from the face of the Pitt Street kerb to accommodate smartpoles, and utility poles, and street trees;

To have a thin and slim profile to mitigate visual impact sympathetic to the neighbouring heritage building.

The new building identification sign shall be deleted replace the existing building identification sign in the same location or be relocated below the awning.

135. The proposed sign is building identification sign, which is a form of signage, defined in the SLEP. A building identification sign is defined in the Dictionary of the SLEP, and identically in the SDCP, in the following terms:

building identification sign means a sign that identifies or names a building and that may include the name of a building, the street name and number of a building, and a logo or other symbol but does not include general advertising of products, goods or services.

Note—

Building identification signs are a type of signage—see the definition of that term in this Dictionary.

136. Section 3.16 of the SDCP, at Figure 3.22, depicts a number of signage types, re-produced below:

137. Ms Joseph considers the sign to be most akin to an above awning sign, while Mr Kerr is of the opinion that, as the sign is neither above the awning, nor perpendicular to the street, it is unable to be classified be reference to Figure 3.22.

138. In my view, it is unnecessary to determine with precision, which sign type best describes that proposed. Instead, reference to the general requirements for signage, at Section 3.16.3, assists me in my finding that the proposed sign is consistent with those general requirements for the reasons that follow:

1. The proposed signage is positioned in locations or on panels in between any architectural elements. In this case, the signage is positioned within the parapet lines formed by the fascia over the glazed addition, and does not conceal or detract from integral architectural features or cover any mechanical ventilation systems (Provision 2).

2. As the sign is positioned flush to the fascia of the glazed addition, and is within the vertical dimension of the fascia, the sign does not detract from the amenity or visual quality of the adjoining heritage item (Provision 4) and so, for the same reason, does not create unacceptable visual clutter (Provision 5).

3. As the sign is proposed to be in a satin light bronze finish, the sign not to contain reflective materials, colours or finishes (Provision 11).

139. Furthermore, the sign is consistent with Provision 1 of Section 3.16.5.1, for Building Identification Signs:

(1) Unless otherwise provided for in Section 3.16.5.2 (Top of building signs), a building identification sign should be located at or near the major pedestrian entry to a building and be designed to fit within the architectural elements of a building.

140. Accordingly, the Applicant’s preferred form of wording is adopted at Condition 2(c).

Condition 4(c) - Heritage transfer

141. Condition 4 deals with floor space ratio (FSR) in Central Sydney.

142. It is relevant here to note that, other than brief written submissions from parties on the conditions, the floor space ratio applicable to the site was not an aspect on which the Court was addressed, was not contended for, and so was not considered by experts.

143. Nevertheless, some background is helpful at this point.

144. The FSR applicable to the site is found on the Floor Space Ratio Map Sheet FSR_014, at cl 4.4(2) of the SLEP. The site is identified with an FSR of 8:1. However, as the site is also within a zone marked ‘Area 1’, the provisions of cl 6.4 also apply.

145. Clause 6.4 relevantly provides:

(1) A building that is in an Area, and is used for a purpose specified in relation to the Area in paragraph (a), (b), (c), (d), (e), (f) or (g), is eligible for an amount of additional floor space (accommodation floor space) equivalent to that which may be achieved by applying to the building the floor space ratio specified in the relevant paragraph—

…

(b) Area 1, business premises, educational establishments, entertainment facilities, function centres, health services facilities, information and education facilities, light industries, office premises or retail premises—4.5:1,

…

146. The Respondent proposes conditions of consent to the effect that the gross floor area of the development be not more than 7,305.7m², which is expressed as an FSR of 9.80:1.

147. Condition 4(c), proposed by the Respondent, imposes on the Applicant a requirement that:

“Prior to a Construction Certificate being issued, Council’s written verification must be obtained, confirming that 238.95sqm of heritage floor space was allocated (purchased and transferred) to the development, being that gross floor area in excess of 8:1 as specified in the Sydney Local Environmental Plan 2012.”

148. As I understand it, the quantum of 238.95m² is 50% of the additional gross floor area of 477.89m², identified in Exhibit 1, and on architectural plan drawing DA-06 (Exhibit G) as comprising a breakdown of the Basement (274.26m2); Lower Ground Floor (166.13m2); the First Floor (37.5m2).

149. In written submissions, the Applicant submits:

“The planning controls require the Applicant to acquire heritage floor space which is not always available. In recognition of the possibility that heritage floor space may not be available for the purchase the Council has an Alternative Heritage Floor Space Scheme (enclosed). The scheme is not available unless attempts have been made to purchase heritage floor space from the open market. If attempts are unsuccessful an applicant can participate in the alternate scheme. There is no requirement in the alternate scheme for Council to act reasonably in considering an offer from an applicant. This means that the Council could arbitrarily refuse to accept an offer from an Applicant as a way of preventing the carrying out of the development. Accordingly, the Applicant has proposed a condition with cascading obligations. The Alternative Heritage Floor Space Scheme cannot be used prior to making at least three offers to purchase heritage floor space to at least three separate owners of heritage floor space. Accordingly, 4(c)(i) deals with purchasing heritage floor space from another owner. 4(c)(ii) deals with the use of the Alternative Heritage Floor Space Scheme. Finally, 4(c)(iii) considers the unfortunate circumstances where Council has unreasonably refused an offer to purchase heritage floor space in accordance with the Alternative Heritage Floor Space Scheme.”

150. In support of its submissions, the Applicant’s preferred form of wording for Condition 4(c) is as follows:

Prior to a Construction Certificate being issued, Council’s written verification must be obtained confirming that:

(i) 238.95sqm of heritage floor space was allocated (purchased and transferred) to the development, being that gross floor area in excess of 8:1 as specified in the Sydney Local Environmental Plan 2012; or

(ii) the applicant has made an offer to enter into a planning agreement in accordance with the Alternative Heritage Floor Space Allocation Scheme, December 2020 and Council has accepted the offer; or

(iii) the applicant has made an offer to enter into a planning agreement in accordance with the Alternative Heritage Floor Space Allocation Scheme, December 2020 and Council has refused to accept the offer.

151. In reply, the Respondent counters that it has an adopted policy to address this issue in the event Heritage Floor Space is unavailable. Should the Applicant demonstrate to the satisfaction of the Respondent that genuine efforts to purchase such floor space in the market have been made, in accordance with guidance found on page 5 of the Alternative Heritage Floor Space Scheme, then the development application can be amended so as to enter the scheme.

152. As this is a common approach, the Respondent submits that the standard condition should not be amended.

153. In essence, the Applicant contends that conditions of consent should be poised in preparation for the Respondent to act unreasonably in a future decision made subsequent to the grant of consent.

154. The Court notes an avenue of appeal, under s 8.7(2)(a) of the EPA Act, is available to the Applicant in such an eventuality.

Orders

155. The Court orders that:

1. The appeal is upheld

2. Development Application DA 2020/235 for alterations and additions to existing commercial building at 84 – 84b Pitt Street Sydney NSW 2000 is determined by the grant of consent, subject to conditions of consent at Annexure A.

3. All exhibits are returned, except for Exhibits A, B, C.

……………………

T Horton

Commissioner of the Court

266021.21 Horton C (Annexure A) (254502, pdf)

**********

Amendments

23 September 2022 - Annexure A added

Decision last updated: 23 September 2022