The Trustee for Good Time Holdings NSW Trust v The Council of the City of Sydney

[2023] NSWLEC 1572

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Trustee For Good Time Holdings NSW Trust v The Council of the City of Sydney [2023] NSWLEC 1572

Hearing dates:

19, 20 and 21 September 2023

Date of orders:

29 September 2023

Decision date:

29 September 2023

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The Applicant is granted leave to amend the application to rely on an amended proposal.

(2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(3) The appeal is dismissed.

(4) Development Application No. D/2023/10 for the demolition of existing structures, excavation for three basement levels and construction of a 17-storey hotel development and ancillary uses, including food and drink premises, function centre and recreational areas, at 311-317 Sussex Street, Sydney, is refused.

(5) The exhibits, other than Exhibits 7 and A, are returned.

Catchwords:

DEVELOPMENT APPLICATION – demolition of part of a former warehouse building and construction of a hotel including ancillary uses – insufficient environmental planning grounds to justify the exceedance of the height of buildings development standard – the provisions in the Sydney Development Control Plan 2012 regarding warehouse buildings older than 50 years apply to the existing building notwithstanding that the site is not identified as a local heritage item – the proposal does not conserve the significant elements of the part of the former warehouse on the site

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 8.15

Land and Environment Court Act 1979, s 39

Sydney Local Environmental Plan 2012, cll 4.6, 6.4, 6.21B, 6.21C, Sch 5

Cases Cited:

Abrams v The Council of the City of Sydney (No 2) [2018] NSWLEC 85

Cumming v Cumberland Council (No 2) [2021] NSWLEC 117

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

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

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

The Trustee For Good Time Holdings NSW Trust (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
Z Heger (Respondent)

Solicitors:
Piper Alderman (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2023/107540

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. D/2023/10 for the demolition of existing structures, excavation for three basement levels and construction of a 17-storey hotel development and ancillary uses including food and drink premises, function centre and recreational areas (the proposal), at 311-315 and 317 Sussex Street Sydney (the site), by The Council of the City of Sydney (the Council).

Issues

2. The Council’s primary contentions can be summarised as:

• The façade (including the bay/s behind the façade) of the existing warehouse building is worthy of retention and should be retained and integrated into any new development on the site;

• The contravention of the height of buildings and floor space ratio (FSR) numerical development standards is not supported; and

• The proposed new building does not adequately interpret the existing warehouse building, nor the heritage item on the opposite side of the street.

The site and its context

3. The site is on the western side of Sussex Street, between Bathurst Street and Liverpool Street, with rear access from James Lane. The site has an area of 535.8m² and a primary street frontage to Sussex Street of 25.32m.

4. The site accommodates part of a three-storey warehouse building, that was once part of a larger warehouse building. Two bays of the former warehouse building are extant on the adjoining property to the north.

Figure 1: The site, 311-315 and 317 Sussex Street (taken from the Amended Statement of Facts and Contentions, Ex 7).

5. The former Sussex Street Public School is on the opposite side of Sussex Street. The school, including grounds, fence and interiors, is identified as a local heritage item (I1965, Sch 5, Sydney Local Environmental Plan 2012 (LEP 2012)).

6. The rear laneway, James Lane, is identified as a local heritage item (I1812, Sch 5, LEP 2012).

The application is amended

7. At the commencement of the hearing, the Applicant sought, by Notice of Motion, to amend the application to rely on an amended proposal and supporting documents. The motion was unopposed and granted.

The proposal

8. The proposal includes the following:

• Basement Level 3: storage, plant, and services as well as a cardio room, end of journey facilities, 23 bicycle parking spaces and one 1 bike repair space.

• Basement Level 2: 9 car parking spaces, car lift and storage/back of house.

• Basement Level 1: storage, plant, and services.

• Lower Ground Floor (James Lane): hotel lobby, waste rooms, fire control room shared drop off/pick up area, vehicular access to car lift and turn table, and laundry.

• Upper Ground Floor (Sussex Street): hotel lobby and concierge; food and drink premises; and bathroom amenities.

• Level 1: food and drink premises/function centre and associated bar and kitchen facilities; and bathroom amenities.

• Level 2: 8 hotel rooms; and services.

• Level 3: 8 hotel rooms.

• Levels 4-14: 10 hotel rooms on each level.

• Level 15: food and drink premises, storeroom, and bathroom amenities.

• Level 16: swimming pool and deck.

• The proposed hours of operation are: hotel – 24 hours, 7 days a week; food and drink premises on lower and upper ground floors – 6.00am to 11.30pm, 7 days a week; level 1 food and drink premises and function centre – 7.00am to 11.00pm, 7 days a week; rooftop food and drink premises – 6.00am to 12.00am (midnight), 7 days a week; rooftop pool – 6.00am to 10.00pm, 7 days a week.

Planning framework

9. The site is zoned SP5 Metropolitan Centre zone under the LEP 2012. The objectives of the zone, to which regard must be had, 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.

10. The height of buildings development standard for the site is 50m.

11. The floor space ratio (FSR) development standard for the site is 9:1, including the bonus FSR of 1.5:1 for hotels under cl 6.4(1)(g) of LEP 2012.

12. Clause 6.21C Design excellence applies to the proposal at cl 6.21B of LEP 2012. The consent authority, or the Court exercising the functions of the consent authority, must have regard to the matters listed under cl 6.21C(2) in considering whether the proposal exhibits design excellence.

13. Sydney Development Control Plan 2012 (DCP 2012) applies to the proposal and includes the following relevant text regarding warehouses and industrial buildings older than 50 years:

“3.10 Significant Architectural Building Types

3.10.1 Warehouses and industrial buildings older than 50 years

The City has a variety of warehouses and industrial buildings including Victorian, Federation, and Interwar periods. These different architectural periods result in various built form characteristics and detailing.

Central Sydney, Haymarket, Chippendale, Pyrmont, Ultimo and Surry Hills have examples of Federation and pre-war, interwar and post-war warehouses. These often draw inspiration from Romanesque architecture and feature arched windows and sandstone trimmings. Federation warehouses are typically utilitarian in character and often have simple cubic or rectangular forms reinforced with vertical brick piers terminating in arches and articulated bays at regular intervals.

The following objectives and provisions relate to alterations and additions to warehouse buildings that are heritage items on Schedule 5 of the Sydney Local Environmental Plan 2012, draft heritage items or are located within a Heritage Conservation Area.

Objectives

(a) Conserve warehouse and industrial buildings older than 50 years and ensure that alterations, additions and adaptive re-use maintain the legibility of the historic use.

(b) Encourage the conservation of existing warehouse buildings and fabric and ensure that alterations and additions are sympathetic in scale and style to the existing building.

Provisions

(1) Alterations and additions are to be supported by a report, prepared by a suitably qualified and practising engineer, certifying that the works will not jeopardise the structural integrity of the building.

(2) Alterations and additions are to maintain significant fabric and building elements.

(3) A proposed change of use must not compromise the significant fabric and building elements.

…

(8) Alterations and additions are to:

(a) retain the essential geometric form of the existing building when viewed from the public domain; and

(b) complement the materials and articulation of existing façade elevations, including distinguishing features that occur at regular intervals.

(9) The original or significant pattern of windows and openings is to be retained.

(10) All original window frames, sashes and lights are to be retained on prominent elevations and on secondary elevations where considered critical to the significance of the building.

(11) Work to the facade is to:

(a) retain original and significant elements and finishes including catheads, hoists and face brick detailing;

(b) reinstate or restore missing original elements;

(c) remove detracting elements;

(d) minimise new elements; and

(e) not obscure original element

…

(15) Existing floor levels are to be maintained…

(16) Any internal subdivision and change to the layout of floor areas such as the creation new units, is to respect the existing pattern of windows and openings and have minimal heritage impact including on significant structure and views into the interior.

(17) Significant original elements, fabric and features that are characteristic of the former use of the building are to be:

(a) retained;

(b) generally not obscured by new elements; and

(c) where retained, be adapted to meet contemporary needs or safety standards, alterations must be reversible and minimal, where possible.

14. Section 5.1.3 of DCP 2012 is in the following terms:

“5.1.3 Heritage items, warehouses and special character areas

This section applies to all heritage items.

Value statement

Central Sydney has a wealth of historic buildings and places; many of which are not only locally significant, but are also significant at a state, national or international level. Many have both individual value and collective value. Their attributes contribute to Special Character Areas in the city centre that have a distinctive identity and sense of place. The former warehouses of Central Sydney also have particular historic features.

Conserving our environmental heritage and Special Character Areas respects Sydney’s inheritance and contributes to the diversity, vitality and liveability of the city centre. The diversity of scale, form, and character, of heritage places and areas, provides relief from denser contemporary development and places for cultural and social activities.

The challenge is to create a high quality urban environment that serves the needs of the city centre and provides for new development whilst conserving the value and the distinctive qualities of heritage items and Special Character Areas for future generations.

Special Character Areas offer an effective basis for overarching objectives for urban design and for controls that effectively guide the form of new development. Heritage Items are usually best conserved in their entirety. New development may incorporate a heritage item subject to a conservation management plan that establishes how its heritage significance will be appropriately conserved.

The following objectives and provisions relate to development of and adjacent to Heritage Items, alterations and additions to warehouse buildings and the conservation of public domain features in Special Character Areas. They should be addressed in addition to the requirements of Section 3 where applicable.

Objectives

(a) To conserve heritage items in their entirety.

(b) To conserve and enhance former warehouses and provide for their appropriate use in a manner that retains significant courtyards, cartways and other historic features.

(c) To conserve and enhance significant features within the public domain of Special Character Areas.

(d) To ensure appropriate height transitions between development and heritage items as required by Clause 6.16 of Sydney LEP 2012.

(e) To enhance existing public views and vistas to heritage items.

(f) To conserve the setting of heritage items by ensuring that new development respects and reinforces the significant scale, form, modulation, articulation, proportions, street alignment, materials and finishes of heritage items in the vicinity.

Provisions

…

5.1.3.3 Warehouse buildings

The following are in addition to the general warehouse provisions in Section 3.10.1.

(1) New development should conserve the significant form and configuration of warehouse buildings including surviving cartways and courtyards.

(2) Ensure new uses for warehouses are compatible and minimise change to significant components, spaces and character, including adaptations required to comply with the National Construction Code - Building Code of Australia.

(3) New development should retain and conserve significant features and spaces of former warehouses, internally and externally. Significant components of warehouses in central Sydney vary according to style and period, and may include:

(a) structural components and roof forms;

(b) external and internal walls including footings;

(c) subfloors, floors and ceilings;

(d) roofing and roof plumbing;

(e) loading bays, docks, and loading and hoisting components such as pulley beams, pulleys and hoist machinery;

(f) the design and placement of openings and attachments including door and window assemblies, grills, glazing, gates, vents, basement lights and hardware;

(g) internal and external stairs, chutes, internal lifts and goods hoists;

(h) pavements such as stone setts, and drains, steel and iron wheel tracks;

(i) early finishes, signage and bollards

(j) cartways and cartdocks

(4) Significant features and spaces of courtyards and cartways to retain in new development include their:

(a) existing size and configuration;

(b) openness to the sky and street;

(c) functionality as a passage between the street and internal courtyard;

and

(d) original level and grade, associated archaeological potential and evidence of early pavements or other in-ground features.

Public submissions

15. One resident objector gave evidence at the commencement of the hearing onsite. His wife is the owner of an adjoining property. His concerns can be summarised as:

• The dividing wall between his wife’s property and the site is not a party wall.

• His wife’s property is vulnerable to damage from vibration related to excavation and construction on the site.

• The existing warehouse building is worthy of retaining.

Expert evidence

16. The Applicant relied on the expert evidence of Peter Smith (urban design), Jeff Mead (planning), James Phillips (heritage), Marco Fadda (structural engineering) and Julian Brady (landscaping).

17. The Council relied on the expert evidence of Cindy Ch’ng (urban design), Reinah Urqueza (planning), Hui Wang (heritage), Hari Gohil (structural engineering) and Kate Yates (landscaping).

18. The experts prepared joint reports and the heritage, structural engineering and planning experts gave concurrent oral evidence.

Contravention of height of buildings development standard

19. The proposal has a maximum height of 54.95m (Ex C, p 4). The height of buildings development standard for the site is 50m.

20. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard (Ex C).

21. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] (“Initial Action”)). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a “jurisdictional fact of a special kind”, because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action at [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant’s written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows:

(4) Development consent must not be granted for development that contravenes a development standard unless—

(a) the consent authority is satisfied that—

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

22. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) Land and Environment Court Act 1979 (LEC Act), but should still consider the matters in cl 4.6(5) of LEP 2012 (Initial Action at [29]).

The applicant’s written request to contravene the height of buildings development standard

23. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant’s written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard

24. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant’s written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).

24. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (“Wehbe”) and repeated in Initial Action [17]-[21]:

1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

3. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

4. the development standard has been abandoned by the council;

5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

26. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]). The applicant’s written request to contravene the height of buildings development standard justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary because the objectives of the development standard are achieved, notwithstanding the numerical non-compliance with the standard.

Insufficient environmental planning grounds to justify the exceedance of the height of buildings development standard

27. The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

28. I am not satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant’s written request defends the exceedance of the height of buildings development standard based on the following environmental planning grounds:

• The current development consent for the site, D/2018/686 (Ex 8, the consent), has a maximum building height of 54.9m to the uppermost edge of the building fronting James Lane, and a height of 54.7m fronting Sussex Street. The proposal has a building envelope and footprint that is very similar to the consent. The building height is therefore established by the consent and maintained by the proposal. The consent should be given weight in considering the written request to contravene the height of buildings development standard.

• Retention of the existing building is not feasible.

• The consent has established the building height, bulk and scale of development on the site and the non-compliance with the height of buildings development standard will contribute to the character of the locality.

• The non-compliance with the height of buildings development standard will not have any adverse visual impact to the public or neighbouring properties.

• The non-compliance with the height of buildings development standard achieves a high level of design excellence and is compatible with the existing and desired future character of the locality.

• The subject site is affected by flooding and the lower ground and upper ground floor have been located at reduced levels to comply with the 1% AEP plus 500mm freeboard. This increases the overall height of the proposal.

• The social benefits of providing additional hotel accommodation within a highly sought-after location should be given weight.

• The amenity impacts have been established by the building envelope of the consent and this is maintained by the proposal.

• The proposal meets the aims and relevant objectives of the applicable environmental planning instruments.

29. I do not consider that the environmental planning grounds cited by the written request in relation to the exceedance of the height of buildings development standard are sufficient, for the following reasons:

• I accept that the consent is a consideration as a relevant instrument under s 39(4) of the LEC Act (Abrams v The Council of the City of Sydney (No 2) [2018] NSWLEC 85 at [38] (“Abrams”)). I accept Ms Urqueza’s evidence, in regard to the assessment of the consent, that the retention of the façade and two bays of structure behind the façade was considered to be an optimal outcome in maintaining the contribution of the warehouse building to the established character of Sussex Street; and the bulk of the necessary structural solution to retain the façade and the generous floor to ceiling dimensions of the existing warehouse were sufficient to justify the exceedance of the height of buildings development standard in order to recover foregone gross floor area (Ex 5, par 31). This important circumstance distinguishes the consent in terms of its building envelope from the proposal and does not justify the contravention of the height of buildings development standard for the proposal. The terms of cl 4.6 of LEP 2012 require the consent authority, or the Court exercising the functions of the consent authority, to be satisfied of the matters under subcl (4) in relation to the proposal (Abrams at [46]-[47]). The consent does not establish a concept approval of a building envelope for future, different development applications.

• I accept the agreement of the structural engineers that retention of the existing façade is feasible (Ex 6, p 21). Had the retention of the existing façade not been feasible, it would not justify an exceedance of the height of buildings development standard, because the demolished building presents no constraints.

• The lack of amenity impacts caused by the portion of the building envelope over 50m above existing ground level does not, in of itself, justify the exceedance of the height of buildings development standard.

• The planning experts agreed that the flood planning level requires the ground floor of the proposal to be raised 352mm above the lowest point of the Sussex Street footpath. I accept the Applicant’s position that this justifies a proportional exceedance of the height of buildings development standard.

• The proposal is availed of a bonus 1.5:1 FSR pursuant to cl 6.4(1)(g) of LEP 2012 as the proposed use is a hotel. This bonus embodies the Council’s policy to encourage certain uses in certain areas of the city. Adding more gross floor area over and above the bonus does not justify an exceedance of a development standard.

30. That the written request to contravene the height of buildings development standard does not establish sufficient environmental planning grounds to justify the contravention is determinative, as satisfaction of the terms of cl 4.6(4)(a)(i) of LEP 2012 is a jurisdictional pre-condition to the grant of consent.

Section 5.1.3.3 of the Sydney Development Control Plan 2012 applies to the potion of the former warehouse building on the site

31. The Applicant submitted that section 5.1.3 does not apply to the proposal because the site is not identified as a heritage item. The introductory sentence, “This section applies to all heritage items” is, according to the Applicant’s submission, ambiguous as to whether the section is limited to warehouses identified as heritage items.

32. The Respondent submitted that section 5.1.3 applies to all warehouse buildings over 50 years old, whether or not they are identified as heritage items. This is brought out in the objectives, where (a) relates to heritage items, and (b) relates to former warehouses; as (b) would be redundant if the section only applied to heritage items.

33. I accept Mr Phillips’ evidence that the existing building on the site, being part of a Federation era warehouse built for Anthony Hordern & Sons Department Stores and designed by the architectural firm Morrow & De Putron, does not meet the threshold for heritage listing under the NSW Heritage Office criteria (Ex J, at 7.1).

34. I accept Mr Phillips’ evidence that retention of the significant parts of the existing building including the front façade could be considered to be the best design option for the site, if feasible to do so (Ex 4, par 35). In Mr Phillips’ opinion, the façade has “some degree of heritage significance” and “some representative value as a Federation warehouse”. In his view, the building is compromised by being only part of the whole composition of the former warehouse building which originally consisted of 13 bays. He noted that the Council has recently sanctioned the demolition of part of the former warehouse building when the consent for the adjoining Vibe Hotel was granted.

35. I accept Mr Phillips’ evidence that the contribution of the existing building to the setting of the heritage item on the opposite side of Sussex Street is only marginal, as the buildings have no direct visual relationship and are not related in any way.

36. I accept the Respondent’s submission that section 5.1.3 of DCP 2012 applies to former warehouse buildings older than 50 years. Section 3.10 of DCP 2012 identifies “significant architectural building types”, under which “warehouses… older than 50 years” are identified as a significant architectural building type. Section 5.1.3.3 Warehouse buildings includes provisions in addition to the general warehouse provisions in section 3.10.1. As the existing building is identified as (part of) a former warehouse building older than 50 years, section 3.10.1 applies to the proposal. As section 3.10.1 applies, so does 5.1.3.3, because those provisions are identified as being in addition to the provisions under section 3.10.1. The provisions under section 5.1.3.3 of DCP 2012 are not limited to former warehouse buildings identified as heritage items, but apply to former warehouse buildings older than 50 years, which are identified as a “significant architectural building type” by DCP 2012.

37. The proposal to entirely demolish the existing part of the former warehouse building on the site, the façade of which is identified as being of some heritage significance by the Applicant’s heritage expert notwithstanding that it does not meet the threshold for local heritage listing, is contrary to the provisions for warehouse buildings under sections 3.10.1 and 5.1.3.3 of DCP 2012. The retention of the façade and structural bay/s is feasible according to the agreed evidence of the structural engineering experts and as such, the best design option for the site, according to the Applicant’s heritage expert.

38. The proposal to demolish the existing building is contrary to objective (a) of section 3.10.1 of DCP 2012, to “conserve warehouse…buildings older than 50 years and ensure that alterations, additions and adaptive re-use maintain the legibility of the historic use”; and (b) of section 5.1.3.3 of DCP 2012, “to conserve and enhance former warehouses and provide for their appropriate use in a manner that retains significant…historic features”.

Conclusion

39. The environmental planning grounds cited by the Applicant in the written request to contravene the height of buildings development standard are insufficient, pursuant to cl 4.6(4)(a)(i) of LEP 2012, and this is determinative of the appeal as cl 4.6 is a jurisdictional pre-requisite to the grant of development consent as the proposal exceeds the height of buildings development standard.

40. I find that section 5.1.3 of DCP 2012 does apply to the proposal because the site contains part of a former warehouse that is older than 50 years, which is a significant architectural building type identified by DCP 2012. The part of the former warehouse building extant on the site, notably the Federation era façade, is of some heritage significance and retention of that façade is structurally feasible. The proposal is therefore contrary to the objectives for former warehouse buildings under sections 3.10.1 and 5.3.1.1 of DCP 2012.

Orders

41. The orders of the Court are:

1. The Applicant is granted leave to amend the application to rely on an amended proposal.

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

3. The appeal is dismissed.

4. Development Application No. D/2023/10 for the demolition of existing structures, excavation for three basement levels and construction of a 17-storey hotel development and ancillary uses, including food and drink premises, function centre and recreational areas, at 311-317 Sussex Street, Sydney, is refused.

5. The exhibits, other than Exhibits 7 and A, are returned.

Susan O’Neill

Commissioner of the Court

**********

Decision last updated: 29 September 2023