Trinvass Pty Ltd v Council of the City of Sydney

[2015] NSWLEC 151

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Trinvass Pty Ltd and Anor v Council of the City of Sydney [2015] NSWLEC 151

Hearing dates:

15-17 September 2015

Decision date:

21 September 2015

Jurisdiction:

Class 1

Before:

Moore AJ

Decision:

See [94] to [96]; see directions at [97] to permit orders to be made

Catchwords:

DEVELOPMENT APPLICATION – communal open space – internal amenity – floor-to-ceiling height – compliance with conditions of consent – public submissions objections

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 34, 79C(3A), 80A
Sydney Development Control Plan 2012 cl 4.2.1.2
Sydney Local Environmental Plan 2012

Cases Cited:

Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; 172 LGERA 338
Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367
Newbury District Council v Secretary of State for the Environment [1981] AC 578
The Owners - Strata Plan No 69312 v Rockdale City Council & Anor; Owners of SP 69312 v Allianz Aust Insurance [2012] NSWSC 1244
Zhang v Canterbury City Council [2001] NSWCA 167; 51 NSWLR 589

Category:

Principal judgment

Parties:

Trinvass Pty Ltd (ACN 074094063) (First Applicant)

Kelaron Pty Ltd (ACN 073975416) (Second Applicant)

Council of the City of Sydney (Respondent)

Representation:

Counsel:

Ms S Duggan SC (Applicants)
Mr I Hemmings SC (Respondent)

Solicitor:

Newhouse & Arnold (Applicants)
The Council of the City of Sydney (Respondent)

File Number(s):

10266 of 2015

Publication restriction:

No

JUDGMENT

Introduction

General

1. On the southern edge of Sydney's central business district, Elizabeth Street, running toward the south, goes down a gentle decline from Liverpool Street before rising again towards Central Station. At the bottom of this decline, the main Sydney Railway line, elevated on a sandstone clad viaduct, is the western boundary of the road corridor.

2. On the eastern side, at the foot of the dip, effectively, lies a group of buildings addressing Elizabeth Street and bounded, on the north, by Blackburn Street and, on the south, by Foster Street. This group of buildings, known as 216 to 228A Elizabeth Street, Sydney (the site) has had a development application lodged for it by Trinvass Pty Ltd and Kelaron Pty Ltd (the development proponents), and the deemed refusal of which by the Council of the City of Sydney (the Council) has led to these proceedings.

The site

3. The most northern element of the site, known as 216 to 222 Elizabeth Street, Sydney has, in the past, housed an indoor golf driving range and golf equipment shop. On top of this building, for many years, was located an illuminated sign, known as the Sharpies Golf House sign, that incorporated an image of a golfer at the northern (CBD) end, an image of a golf course hole and marker flag at the southern end and white lights that operated in sequence across an arc between them creating the impression of the golfer hitting a ball into the hole. The words “Sharpies Golf House” appear in the space below the arc.

4. This sign became dilapidated and has been removed into storage for restoration and, at some unspecified time in the future, display at an annex of the Powerhouse Museum to which institutional ownership of the sign has been transferred. However, as the sign has been listed on the State Heritage register, the question of acknowledgement and interpretation of the sign on the site arose to be considered in these proceedings and was resolved between the parties by a condition of consent (Exhibit 3, proposed condition (23)).

Details of the site

5. Although the location of the site has earlier been described, for the purposes of understanding the issues arising, more detail is required. The site is L-shaped with the longer portion of the site extending to the east along Blackburn Street. The site has a total area of 738.9m² with frontages to Elizabeth Street, Foster Street and Blackburn Street. As the Blackburn Street frontage extends beyond the depth of the Foster Street frontage, the rear boundary of the site at the end of its Blackburn Street frontage extends to the south to complete the L-shape.

6. There are two buildings adjacent to the site within the block bounded by Elizabeth, Blackburn and Foster Streets. The one to the immediate east on Blackburn Street is heritage listed and two-storey, whilst that to the south-east fronting Foster Street comprises a five-level residential apartment development of a more recent era.

The planning controls

7. The site is zoned B4 Mixed Uses under the Sydney Local Environmental Plan 2012 (the LEP). Development on the site is subject to two primary controls under the LEP. The first is the height control setting a maximum of 29m for any redevelopment on the site. The second is a floor space ratio control which sets a maximum floor space ratio of 6.5:1 for development on the site.

8. In addition because of the golf sign that had been located on the site and is an item of State Heritage, the golf driving range portion of the site (216 to 222 Elizabeth Street, Sydney) is listed as a heritage item under the LEP.

9. The process by which the planning controls for the site were set has been a manner of some controversy and has resulted in the Council seeking, through controls contained in the Sydney Development Control Plan 2012 (the DCP), to impose an effective height restriction (5 storeys) for development on the site that is lower than the maximum height permitted under the LEP. In light of the approach taken by the Council in these proceedings, this aspect only needs to be considered in dealing with objector submissions.

The current plans

10. A wide range of areas of expertise had been engaged by the parties to prepare written reports for the proceedings and, through the joint conferencing process, joint expert reports dealing with the Council's Amended Statement of Facts and Contentions. The Council’s Amended Statement of Facts and Contentions set out a wide range of matters that had arisen out of the Revision F Plans, a revised set of plans that had been developed as a consequence of the discussions that had taken place during the course of the s 34 conciliation conference conducted by Brown C in May and June 2015.

11. The areas of expertise engaged included:

1. Architectural design.

2. Drainage;

3. Solar access impact;

4. Structural engineering;

5. Town planning;

6. Traffic and parking;

7. Urban design; and

8. Ventilation.

12. By the time the matter came to hearing, after the conciliation conference process, there had been further refinement of the plans and leave being granted to rely on them, these being the Revision G Plans.

13. Joint conferencing of a multidisciplinary nature (where needed) took place (for example, between the urban designers and the town planners) whilst, in each of the other disciplines, joint conferencing took place within the relevant area of expertise. To the extent that some elements of the joint conferencing process were interdependent (town planning/urban design needing to follow from a combination of ventilation and solar access impact analysis, for example) sequencing of this nature took place.

14. The consequence of the series of joint conferences considering the Revision G Plans was that, although the Council’s Amended Statement of Facts and Contentions pressed in response to the Revision F Plans was extensive and set out a wide range of matters where the Council considered there remained significant deficiencies in these plans, the changes incorporated in and after the Revision G Plans resolved many but not all of these deficiencies. The joint conferencing process was, however, an ongoing one (including during the course of the hearing) leading to further resolution of various issues not resolved by the Revision G plans or agreed changes to these plans prior to the commencement of the hearing.

15. In fact, by the time of the commencement of the site inspection on the first day of the hearing, all but two of the Council’s issues had either been resolved or, in my assessment, were likely to be resolved during the ongoing joint conferencing process. The two issues that remained of significant concern were:

• whether the nature and location of the communal open space proposed for the north-eastern corner of Level 4 of the development was sufficient in area and satisfactory in expected performance; and

• whether or not the proposed development could, in fact, be constructed so as not to exceed 25m in height.

16. My optimism was well-founded – in addition to resolving the other issues, the first of the above issues was also resolved as later discussed.

The site inspection

17. On the first morning of the hearing, I met the legal representatives of the parties and their town planning and urban design experts at the site. Given the semi-derelict nature of the site and that complete demolition is proposed, it was unnecessary to inspect the interior of the site. We did, however, during the course of the site inspection, walk around the three frontages of the site.

18. Two objectors who had been expected to attend to give evidence during the site inspection (they being representatives of the Big Hostel located immediately to the north of the site across Blackburn Street with a frontage to Elizabeth Street and a representative of the executive committee of the Owners Corporation of an apartment block across Foster Street to the south-east of the site) did not attend.

19. However, the strata manager for the apartment block immediately adjacent to the south-eastern corner of the development and partially located within the elbow of the L-shape of the site did meet us. He took us into the small courtyard communal open space of this development and to the uppermost corridor of the development looking north to the boundary between the site and its heritage building neighbour to the east along the Blackburn Street frontage. At these two locations, the Council's concerns relating to overshadowing and overlooking from the proposed development were outlined.

The “amber light” and communal open space

20. Having examined all the individual expert reports and those joint expert reports that had been filed prior to the commencement of the hearing, it had seemed to me that there was one possible resolution of the first of the two issues earlier set out, that of the communal open space, (assuming that, in fact, resolution was required) that warranted consideration through the “amber light” approach taken by the Court to contested development appeals.

21. However, as that which might be contemplated in this instance might not be regarded by one or other of the parties as capable of being required within the scope of the present development application as it has evolved, I considered it appropriate to give the legal representatives of the parties notice of that which I would wish them to address during the course of the proceedings. I did so, by posing, first, the legal question and then, contingent on the attitude taken to that, two alternative questions for consideration by the town planners/urban designers. The questions that I provided to the legal representatives were in the following terms:

(1)     If I were to require deletion of Apartments 7.01 or 7.01 and 7.02 and the use of that space as communal open space with the presently proposed communal open space becoming a three-bedroom apartment, would that be a permissible “amber light” outcome within the scope of the present application?

22. If yes:

(2)     If I were to require deletion of Apartment 7.01 and the use of that space as communal open space with the presently proposed communal open space becoming a 3 bedroom apartment, would that provide sufficient and appropriate communal open space for the proposal?

23. If no to (2):

(3)     If I were to require deletion of Apartments 7.01 and 7.02 and the use of that space as communal open space with the presently proposed communal open space becoming a 3 bedroom apartment, would that provide sufficient and appropriate communal open space for the proposal?

The adjournment for further consideration

24. After the conclusion of the site inspection and prior to the scheduled recommencement in court, the legal representatives of the parties made contact with my Associate seeking that the matter go over until the second day to enable further discussions to take place between the parties and their experts. I agreed to this course of action.

25. When the matter recommenced on the second day, I was advised that, in various groupings, the experts were still working through matters that had arisen both out of the questions posed by me as set out above but also as a consequence of ongoing refinements to the design seeking to resolve various other detailed design elements of concern to the Council. At that time, with the exception of the second of the two major concerns of the Council earlier set out, it appeared that there was good prospect of resolution of the issues that were in dispute. The matter was further adjourned to permit this to continue.

Communal open space

26. The urban designers and town planners were continuing to meet about a range of topics with these including options for resolving the communal open space differences between the parties. In addition to the two possibilities set out in my questions (these involving moving the communal open space to Level 7 with the deletion of either one or two apartments and the substitution of an additional three-bedroom apartment on Level 4), an option advanced by the development proponents was being considered that would have retained the two apartments on Level 7 and located the communal open space on the overall roof of the structure above those two apartments (but spread over a slightly larger area) and creating an additional three bedroom apartment on Level 3.

27. I was informed that preliminary consideration of these options led the Council to take the position that communal open space on Level 7 involving only the removal of Apartment 7.01 was not acceptable but that, subject to design layout for the space, communal open space on Level 7 that occupied the present footprints of Apartments 7.01 and 7.02 was potentially acceptable.

28. I was also advised that the Council was prepared to contemplate communal open space on the roof of the building (including provision for stair and lift access extending above the roof height) but not at the location proposed in the development proponents’ option. The Council's position was that such communal open space needed to be centrally located (by inference so that it was not observable from the public domain).

29. I asked Ms Duggan SC, counsel for the development proponents, whether any solar impact analysis had been undertaken as to whether or not there would be any beneficial solar improvement on the communal open space and/or lower level windows facing that communal open space of the development at 37 to 51 Foster Street, Sydney if the communal open space were to be on Level 7 rather than being located on the roof. She advised me that such consideration had not been undertaken but that an enquiry would be made of the relevant expert.

30. At that point I indicated that, if there was in fact an ameliorative solar effect that would follow from locating the communal open space in the north-eastern corner of Level 7 rather than on the roof, I was predisposed (but had not determined) to consider that to be a desirable outcome and to be preferred to communal open space on the roof (setting aside, for the purposes of that comment, any consideration about where such communal open space might be located on the roof).

31. Ms Duggan subsequently advised me that, following the making of the enquiry, the position was that there would be a beneficial solar effect on the neighbouring property and that, as a consequence, the development proponents no longer pressed the rooftop communal open space option.

32. The outcome of this process (subject to resolution of design detail for the communal open space on the north-eastern corner of the Level 7 in replacement for Apartments 7.01 and 7.02) is that this issue was resolved and that, subject to detailed design refinement and agreement on apartment layout, a three-bedroom apartment could be incorporated into the space that had been identified, previously, on Level 4 as proposed communal open space.

Achieving a floor-to-ceiling height of 2.7m

The basis for a 2.7m floor-to-ceiling height

33. The Residential Flat Design Code, although superseded by the recently published Apartment Design Guide, continues to apply to this proposal as a consequence of the transitional provisions concerning applications made prior to the coming into force of the Apartment Design Guide but which had not yet been determined, to finality, by that time. However, the identification of the desirable finished floor level to ceiling height of 2.7m is the preferred outcome for residential development contained in each of these documents.

34. The relevant provision in the Residential Flat Design Code is in the following terms (Exhibit 1 tab 6 folio 163):

Part 03 Building Design

Ceiling heights

Rule of thumb – “in residential flat buildings or other residential floors in mixed use buildings:

in general, 2.7 metre minimum for all habitable rooms”

35. That which is contained in the Apartment Design Guide is in the following terms (Exhibit 1 tab 7 folio 193):

Part 4C Ceiling Heights

Objective 4C-1 Minimum ceiling height for apartment and mixed use buildings

Habitable rooms 2.7m

36. The desired objective is also dealt with in the DCP in the following terms (Exhibit 1 tab 2 folio 40):

4.2.1.2 Floor to ceiling heights and floor-to-floor heights

Objective

(a) Promote daylight access into building interiors and contribute to the flexible use of buildings.

Provisions

(4) Habitable rooms in multi-unit residential development and mixed use development are to have a minimum floor-to-ceiling height of 2.7m.

Requiring 3.1m to achieve 2.7m floor-to-ceiling?

37. The basis for the dispute between the development proponents and the Council in these proceedings is not about the desirability of meeting 2.7m as the floor-to-ceiling height in any habitable room, as the relevant experts for each party agree that this is the appropriate outcome to be achieved for amenity purposes in each apartment.

38. There is, however, significant and fundamental disagreement between them as to how this is to be ensured. This arises as a consequence of the note to the clause of the DCP set out above and immediately following Provision (4), a note in the following terms:

Note: A floor-to-ceiling height of 2.7m requires a minimum floor-to-floor height of 3.1m.

39. Mr Hemmings SC, counsel for the Council, sought comfort from a provision contained in the Apartment Design Guide in Part 2C Building Height (Exhibit 1 tab 7 folio 183), a provision in the following terms:

Considerations in setting height controls

Set building heights by adding together the floor-to-ceiling heights for the desired number of storeys. Add 0.4m per floor for structure, services, set downs and finishes. Add 1m to the total to allow for rooftop articulation. Add 2m to the total to allow for topographic changes where required. Provide additional height in flood prone areas

40. Quite apart from the fact that the Apartment Design Guide does not apply, I do not consider that this height setting provision provides support for why a 3.1m floor-to-floor separation should be mandated. What this provision does is ensures that, within the process of setting an expected maximum height for a building, sufficient allowance should be made in order to accommodate a 3.1m floor-to-floor separation rather than mandating one for any building constructed within such a height control.

41. As a consequence of the various provisions set out above, the Council takes the view that it is necessary to have a 3.1m floor-to-floor separation in order to guarantee that a 2.7m floor-to-ceiling height will always be able to be achieved. The development proponents’ position is that, provided a construction methodology can be identified and adopted that will ensure that such a floor-to-ceiling height is achieved at a lesser separation (3.0m here being proposed) if it is sufficient to establish a regime to ensure that the 2.7m floor-to-ceiling outcome is, in fact, achieved.

The development proponents’ 3.0m floor-to-ceiling proposal

42. The development proponents say that it is unnecessary to provide a 3.1m floor-to-floor separation as, in the opinion of the development proponents' experts, a floor-to-floor separation of 3m creates a wide enough working space (300mm) within which the necessary structurally adequate slab and associated services and finishing can be accommodated, whilst still guaranteeing provision of a 2.7m floor-to-ceiling height.

The Council’s proposed conditions (3.1m)

43. On the other hand, the Council's position is that, as set out in the DCP cl 4.2.1.2, a floor-to-floor separation of 3.1m is essential as a working space of 400mm is necessary to ensure there is sufficient room for a structurally adequate slab and the necessary services and surface finishes. To ensure that sufficient space is available, the Council proposes a requirement, by imposition of two conditions of consent, to mandate that the 400mm space is available. The proposed conditions of consent are in the following terms:

(4)   FLOOR TO FLOOR HEIGHT

The floor-to-floor height of the residential levels (1 to 7) are to be increased to be 3.1m. The modifications are to be submitted to and approved by Council’s Area Planning Manager prior to the issue of a Construction Certificate.

(5)   FLOOR TO CEILING HEIGHT

(a)   Prior to the issue of a construction certificate the certifying authority must ensure that all habitable rooms of each residential unit must have a minimum finished floor-to-ceiling height of no less than 2.7m.

(b)   An occupation certificate must not be issued unless certification from a registered surveyor confirms that the finished floor-to-ceiling heights are no less than 2.7m in accordance with (a) above.

44. The Council acknowledges that these conditions would add additional height to the building so that the building will breach the 25m height limit provided for in the LEP that would ordinarily trigger a requirement for either a design competition or a site-specific development control plan (LEP cl 6.21(5)(a)(ii) - Exhibit 1 tab 1 folio 10). The only exception to these requirements is if the Council is satisfied that the proposed design is one that meets a standard of design excellence.

45. As I understand the Council's position, it is that, provided the 3.1m floor-to-floor separation is incorporated in the design in the fashion proposed to be mandated by the Council's conditions (thus guaranteeing, the Council accepts, at least 2.7m floor-to-ceiling heights), the revised design of the building incorporating all of the changes agreed to throughout the expert joint conferencing process would result in a development proposal that satisfied the Council's requirement for design excellence.

The development proponents’ condition (3.0m)

46. On the other hand, the development proponents do not wish to add to the height of the building and wish to limit its height to 25m. Although various reasons why this might be the case were advanced by Mr Hemmings or Ms Duggan, I do not consider that there is any need for me to consider the validity or otherwise of any of the proffered potential explanations. It seems to me that it is sufficient, given the conclusion that I have reached, that I deal with the matter within the very narrow compass provided by:

1. the DCP’s provision;

2. the competing expert evidence positions; and

3. the competing proposed development conditions dealing with this aspect of the proposed development.

47. Having said that, it is now appropriate to set out the more complex condition of consent proposed by the development proponents as the appropriate way to ensure the desired outcome of 2.7m floor-to-ceiling heights in all habitable rooms on all levels of the proposed development. I observe, before setting out this proposed condition, that the parties accepted that there were drafting deficiencies in it but that these drafting deficiencies are able to be corrected without altering the structure or sense of that which is proposed. This proposed condition is in the following terms:

(1)   FLOOR TO CEILING HEIGHT

(a)   Each residential floor level shall:

(i)   have a slab not more than 200mm thick;

(ii)   have a finished floor-to-ceiling height in the habitable rooms of no less than 2.7m at any point;

(iii)   have an unobstructed dimension of 2.8m between structural slab level and soffit of slab above at any point;

(iv)   have a structural slab level that is no greater than +/-15mm of:

a.   Ground:    11.050

b.   Level 1:    14.700

c.   Level 2:    17.700

d.   Level 3:    20.700

e.   Level 4:    23.700

f.   Level 5:    26.700

g.   Level 6:    29.700

h.   Level 7:    32.700

i.   Roof:    35.700

NOTE: For the avoidance of doubt, the +/-15mm is not cumulative, it may only be applied to each of the associated levels.

(b)   Each residential floor level shall have the ceiling of each habitable room finished with either:

(i)   plasterboard lining fixed directly to the soffit of the slab with wiring for lighting located in a conduit cast into the floor slab; or

(ii)   wet plaster lining to the soffit of the slab with wiring for lighting located in a conduit cast into the floor slab.

(c)   No part of the building shall be higher than RL 35.865.

(d)   Within 21 days of the completion of the slab pour for each level the Applicant shall provide certification by a registered surveyor of compliance with each of the matters identified in (a) above to the private certifier. Any survey must only be carried out after the removal of the formwork for that slab. The certifier must ensure that if any of those matters are not so certified then no further works may be carried out on any further slab until such certification is obtained. A copy of the survey and certificate (if any) for each slab pour must be provided to the Council within 7 days of its preparation.

(e)   A test apartment is to be set up on Level 1, including all floor-to-ceiling finishes to habitable rooms, kitchen and bathroom areas and balconies. The apartment is to be tested by a registered surveyor and certification of compliance with (a)(ii) above must be provided to the certifier prior to construction continuing above the Level 2 slab.

(f)   An occupation certificate must not be issued unless certification from a registered surveyor confirms that the habitable rooms of each unit has a floor-to-ceiling height of 2.7m at all locations within the habitable rooms and that no part of the building exceeds RL 35.865.

48. Although reproduced in the form contained in Exhibit 3, I should observe that the Council accepts that (e) is unnecessary as a proper reading of (d) mandates that the under-slab surface finishing at each level must take place and be certified to be compliant at a minimum floor-to-ceiling height of 2.7m across the whole of the habitable rooms of a level before the slab for the next-but-one level above is able to be commenced. That is, the underside treatment of the Level 2 floor slab providing the floor-to-ceiling heights for Level 1 habitable rooms of 2.7m must be completed and certified prior to work commencing on the floor slab for Level 3, with that regime applying, sequentially, up the construction process.

49. It is the development proponents' position that:

• the necessary compliance by the development proponents with their proposed condition of consent provides the appropriate degree of certainty for the Council that the minimum 2.7m floor-to-ceiling height will be achieved for all habitable rooms;

• contrary to the position advanced by the Council, ensuring compliance with this condition does not require active policing by officers of the Council as the staged certification process provides appropriate passive policing (my expression) of a self-enforcing nature with the Council only needing to be involved if any of the surveys and certificates shows non-compliance or there is some failure to provide such a survey and certificate; and

• the agreed position of the architectural experts (discussed in more detail below) supports the position that adoption of one or other of the construction methodologies mandated by (b) is capable of ensuring, if carried out properly, that 2.7m minimum floor-to-ceiling heights are able to be achieved in all habitable rooms within the proposed residential apartments.

The architectural evidence

50. Before turning to my consideration of this issue, it is appropriate to set out the evidence of the two architects (Mr Kenneth Baird, the Council's expert and Mr Geoff Baker, the development proponents’ expert) on this point contained in Exhibit 7. I should also observe that none of the experts, including the architectural experts, were required to give oral evidence in the proceedings so that, ultimately, the only relevant evidence on this point is that which is contained in Exhibit 7. This evidence was given concerning:

Contention 5      Floor-to-Ceiling Height

a. 2.7m floor-to-ceiling heights are required for residential floors under the Residential Flat Design Code and 4.2.1.2(4) of the DCP. To achieve 2.7m floor-to-ceiling heights, the DCP notes that a 3.1m floor-to-floor height is required.

51. The evidence of Mr Baird on this point was in the following terms:

The required floor-to-ceiling height is 2.7m, and the Sydney DCP 2012 notes that a floor-to-ceiling height of 2.7m requires a floor-to-floor height of 3.0m.

The drawings DA53.2 (G) and DA53.3 (G) (attachment 4) propose 20mm of carpet laid over the 200mm floor slab, and an allowance of 80mm below the floor slab to account for 13mm ceiling sheet, furring channels, wiring, construction tolerances and slab deflection.

A statement from Ben White of Acoustic Logic (Attachment 1) declares that the acoustic insulation requirements under part FP5.4 of the NCC [National Construction Code] 2015 can be met in carpeted areas, and kitchen and bathroom areas using the above-mentioned detail.

However, the matter of construction tolerances and deflection is problematic. AS 3600 establishes a maximum construction tolerance of 15mm from floor-to-floor. In my experience, site managers will round this up to 20mm minimum to account for site contingencies in establishing floor levels, co-ordination of related trades, concrete formwork and placement.

Allowance should also be made for structural deflection of slabs of up to 18mm (refer attachment 3).

Inconsistencies in alignment of concrete formwork also need to be considered: according to AS3610, up to 10mm depending on the class of concrete formwork called for.

This can amount to a total allowance of 43mm to 48mm at a minimum.

GB suggests a series of alternatives for the provision of a finished ceiling. However, the detail provided in the drawings is the detail proposed for the project in question. As it is the most cost-effective of the options GB [Mr Baker] suggests, it is likely to be the preferred detail of the builder.

Given the vagaries of what can happen on site during construction, the proposed detail leaves very little room for error.

In my opinion, the proposed detail as shown on the drawings is not sufficient to guarantee a 2.7m. floor-to-ceiling height within the limits of a 3.0m floor-to-floor height.

52. The countervailing evidence given by Mr Baker was in the following terms:

I agree that the required floor-to-ceiling height under Council’s DCP is 2.7m.

I also agree that Council’s DCP states: “Note: A floor-to-ceiling height of 2.7m requires a minimum floor-to-floor height of 3.1m”.

However, I say that the documentation prepared for this specific development shows that in this particular case a 2.7m ceiling height can be achieved in all habitable rooms with a floor-to-floor height of 3.0m.

KB [Mr Baird] accepts the allowance for floor finishes of 20mm now proposed. The structural engineers agree that the floor slab thickness is 200mm. That leaves a maximum of 80mm for the ceiling if the depth of the floor/ceiling zone is 300mm.

The applicant’s acoustic engineer has stated (see Attachment 1) that the proposed floor finishes and the 200mm slab are sufficient for acoustic purposes, so that the proposed air gap below the slab and plasterboard ceiling are not required acoustically. They are there to provide a smooth ceiling finish and allow for electrical wiring for lights. (The hydraulic and

mechanical engineers have confirmed that there will be no pipes or ducts above any part of any habitable room.)

In addition, I am advised that a maximum allowance of 10mm for construction tolerances is adequate (please refer to Attachment 2). I am also advised from the team’s structural engineer (also an expert Witness in this case) that the maximum slab deflection is 18mm (Attachment 3).

There are various options for the provision of a finished ceiling, including:

13mm plasterboard and furring channels attached to the soffit of the slab – this is the option shown on the architectural drawings at Attachment 4. Furring channels come in various depths with a minimum of 16mm. A suitable allowance for wiring is 10mm. That leaves an air gap of 41mm, which is more than enough to account for slab deflection and construction tolerances.

Fixing of the plasterboard lining directly to the soffit of the slab, with wiring for lighting located in a conduit cast into the floor slab. The plasterboard and adhesive would have a depth of 15mm, leaving a zone of 65mm below the ceiling, which would accommodate slab deflection and construction tolerances with room to spare.

Wet plaster lining to the soffit of the slab, with wiring for lighting located in a conduit cast into the floor slab. A 10mm coat would be more than adequate to smooth out imperfections in the slab soffit, leaving a zone of 70mm below the ceiling.

In summary, a floor-to-ceiling height of 2.7m can be achieved in this proposal with a floor-to-floor height of 3.0m.

Consideration of the floor-to-ceiling height

53. I now turn to consider how I should determine this matter in light of the submissions made by Mr Hemmings and Ms Duggan as to how I should approach the terms of the DCP and the competing conditions advanced by the parties.

54. Although the competing positions were the subject of moderately vigorously advanced competing advocacy, the position is not, in my view, one giving rise to radically complex issues.

55. Before returning to set out the precise terms of the DCP Note that gives rise to this debate, it is appropriate that I record, before turning to an analysis of its terms, to observe that development control plans are not statutory Environmental Planning Instruments in the defined sense provided for in the Environmental Planning and Assessment Act 1979 (the Planning Act) and are not prepared by Parliamentary Counsel. In that regard, it is appropriate, taking the Council's case at its highest (as I elect to do given the conclusion that I have reached on taking this approach that the Council's position is not to be preferred), it is not appropriate to adopt a fine-tooth comb approach to analysis of the term of the DCP here engaged (applying, by analogy, the decision in Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 to consideration of the terms of the DCP).

56. It is appropriate, therefore, to repeat the terms of the Note to cl 4.2.1.2 of the DCP that provides the foundation for this disagreement. It is in the following terms:

Note: A floor-to-ceiling height of 2.7m requires a minimum floor-to-floor height of 3.1m.

57. If the Note were to be dealt with in its literal terms, it contains what is said to be a statement of absolute fact, namely, that is not possible to achieve a 2.7m floor-to-ceiling distance unless a floor-to-floor separation of 3.1m is provided.

58. It is clear from the evidence of the architects set out above that both agree that such an absolute assertion is incorrect. Therefore, if the Note is to be read and understood in terms, it is an assertion made without any valid basis and should, therefore, be ignored.

59. However, if one were to take the less brutal approach, as I do for the purposes of these proceedings, I should treat it as if it had been intended to read:

Note: To ensure that a minimum 2.7m floor-to-ceiling height is achieved in all habitable rooms, the Council requires a minimum floor-to-floor separation of 3.1m.

60. Treating the Note as if it were so drafted takes the Council's case in these proceedings at its highest. I therefore turn to deal with this issue as if the Note were so drafted. The first thing that follows is that (at least until March 2014) the unalloyed guidance provided by the Court of Appeal in Zhang v Canterbury City Council [2001] NSWCA 167; 51 NSWLR 589 applied.

61. From what was said in Zhang by Spigelman CJ at [75], three propositions emerge. First, although the Court has a wide-ranging discretion, the discretion is not at large and is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a Local Environmental Plan. Thirdly, a provision of the DCP directly pertinent to this application is entitled to significant weight in the decision making process but it is not in itself determinative.

62. If this were to have remained the unqualified position, my approach would have been to accept that the control sought to be imposed by the DCP was to require such a 3.1m minimum floor-to-floor separation and then, without in any way appearing to be canvassing the validity, in a general sense, of such a proposition (as to do so would be contrary to Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; 172 LGERA 338), consider whether, in the circumstances of this development proposal, it would be unnecessary to impose such a requirement.

63. I am satisfied that, in this case, that would be unnecessary for the following reasons:

• It is the agreed expert position that the desired floor-to-ceiling height of 2.7m can be achieved using one or other of two conventional construction methodologies which, although not the most frequently used construction methodology, nonetheless are not so unusual as to be regarded with suspicion as to whether the 2.7m floor-to-ceiling height can in fact be achieved;

• The development proponents have proposed a condition of consent requiring that this, in fact, be achieved;

• The condition of consent requires an independently verified, staged and self-policing process to ensure that this is achieved;

• The condition does not require intervention by the Council but does require the development proponents to provide documentation to the Council demonstrating that staged compliance is being achieved; and

• It is the long-settled legal position that I am obliged to assume that the beneficiary of a development consent that is subject to conditions will abide by, and fulfil, the terms of those conditions.

64. In simple Zhang consideration terms, that chain of reasoning would be sufficient, in a broad and more abstract sense, to permit departure from the DCP requirement interpreted in the fashion I have taken.

65. I accept that the tolerances that are inherent in the approach proposed by the development proponent leave little margin for error and will require construction to be executed with, perhaps, far greater attention to detail than might ordinarily be the case. However, the development proponents embrace that requirement and have advanced the development consent regime earlier set out as a method of ensuring that this is achieved. One can only assume that the development proponents understand that, in a worst case scenario, the Council might seek to prevent them constructing the uppermost level of the development if they have not met their undertaking to provide the necessary 2.7m floor-to-ceiling heights mandated by the development consent.

66. However, in addition, there are two further factors that act to provide additional comfort to this approach. First (and of only a little weight, to be true), as earlier set out, the development proponents desire to construct the building within the 25m height limit despite the Council's offer of a dispensation from the consequences of doing so if there were to be adoption of 3.1m floor-to-floor separations. It matters not whether this position is adopted because of a proponent adopted understanding of the decision of Lindsay J in The Owners - Strata Plan No 69312 v Rockdale City Council & Anor; Owners of SP 69312 v Allianz Aust Insurance [2012] NSWSC 1244 or because the development proponents wish to preserve some future perceived additional development potential that would only be able to be realised if there were to be a sufficient residual gap between the 29m maximum height for the building and a 25m high building actually constructed or for some other reason unpostulated in these proceedings.

64. Second, and of greater importance, the Parliament enacted s 79C(3A) of the Planning Act, a provision that came into effect in March 2013. It is a provision in the following terms:

(3A) Development control plans

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.

68. The effect of s79C(3A)(b) mandates taking a flexible approach to those matters subject to this aspect of the dispute between the parties. It seems to me that it is necessary for me to determine whether the alternative solution offered by the development proponents as achieving the object of the DCP provision mandating a minimum floor-to-ceiling height of 2.7m can be achieved without compliance with the terms of the Note as I have proposed it should be construed for the purposes of these proceedings.

69. It is clear to me that, this new statutory provision does modify the position that has followed since the decision of the Court of Appeal. Such a modified position, where I am satisfied that the primary objective of a 2.7m floor ceiling height can be achieved if the approach proposed by the development proponents is executed in the fashion required, the Note to the development control plan cannot stand as an insurmountable barrier to a 3.0m floor-to-floor separation as proposed.

70. Mr Hemmings suggested that, even if I were satisfied that it was possible to be achieved through the processes advanced by the development proponents, nonetheless a properly cautious approach would be to adopt the 3.1m floor-to-floor separation advocated by the Council. He submitted that, if I were to do so by adoption of the conditions proposed by the Council (as earlier set out). It was his submission that to impose those conditions was permissible pursuant to s 80A of the Planning Act and that their imposition would not fail any of the Newbury tests (Newbury District Council v Secretary of State for the Environment [1981] AC 578):

(i) the condition must be imposed for a planning purpose; (ii) it must fairly and reasonably relate to the development for which permission is being given; and (iii) it must be reasonable.

71. Whilst I am satisfied that there is a proper basis to conclude that the first and second of the tests are satisfied, I am ambivalent (at best) as to whether it would be reasonable to do so in the circumstances here and counted. However, again to take the Council's position at its highest, I am prepared to assume that the condition, if imposed, would not fall at this hurdle. That, however, does not mandate its imposition, it merely establishes that the Council's proposed conditions could be imposed. The question of whether they should be imposed give rise to a different discretionary consideration which, for the reasons earlier articulated, I do not consider it should be exercised in the fashion proposed by the Council.

All other areas of concern to the Council

72. Discussions between the relevant groupings of experts dealing with all other matters of concern to the Council resulted in in principle agreement (subject, as appropriate, to preparation of revised plans incorporating the agreed elements) to resolve all of these issues to the satisfaction of the Council.

The Deferred commencement condition

73. The Council's without prejudice proposed conditions of consent (Exhibit 3) include a deferred commencement regime proposed by Transport for NSW (TfNSW). The Council has no power to vary these concurrence authority conditions but it is open to me to do so if there is good reason for any change.

74. In this case, there is no objection to any of the elements of the deferred commencement condition other than the first provision, a paragraph in the following terms:

The owners of the site are required to consult with TfNSW prior to lodgement of relevant designs as part of any Design Competition under the relevant provisions of the Sydney Local Environmental Plan 2012 (SLEP) to ensure that the relevant designs have taken into consideration the relationship of the designs with the future CBDRL.

75. The basis for objection to this element is that it is, in fact, redundant as there will be no design competition undertaken as a consequence of me granting development consent through these proceedings. Therefore I am satisfied that it is appropriate to require the deletion of this element of the deferred commencement condition.

Public submissions

Introduction

76. Mr Hemmings tendered a folder of public submissions that had been received by the Council concerning plans that had been displayed earlier. Subsequently, public submissions that had been made in response to the re-exhibited Revision G Plans were also provided and added to this folder. The folder became Exhibit 2.

77. I note that, amongst the documents added as responses to the renotification, there is one submission in support. Given the outcome, overall, of the proceedings, it is unnecessary to deal with that submission further.

The Council's position on objector concerns

Introduction

78. I have earlier set out the two significant residual concerns that were held by the Council. The first of them, the communal open space issue was, for the reasons earlier outlined, resolved in a constructive fashion by moving the communal open space to the north-eastern corner of Level 7 with the area that had previously been designated for this purpose on Level 4 becoming a new three-bedroom apartment.

79. I note, in passing, that the second three-bedroom apartment agreed to by the planners and urban designers as being a desirable contribution to the apartment mix of the building is to be located on the north-eastern corner of Level 3 immediately below.

80. The second of the Council's residual issues, concerning the appropriate approach to ensure that there is a 2.7m floor-to-ceiling height guaranteed for all the habitable rooms in all apartments within the development has been determined by me, for the reasons earlier set out, in favour of the approach advocated by the development proponents.

81. Setting aside those two issues, it is clear that with the agreed resolution between the various experts of the other design matters that had remained of concern to the Council in the Revision G Plans, the Council does not support any of the issues raised by the objectors as warranting any further alteration to the proposal let alone providing any basis for refusal of the development as finally will be approved.

Outcomes of objector concerns - general

82. The matters raised in the public submissions fell into the following groupings:

Acoustic impacts on 230 Elizabeth Street;

General amenity impacts on the locality during construction;

Incompatible bulk and scale - the proposal is an overdevelopment of the site;

Inconsistencies in the plans;

Loss of amenity to 37-51 Foster Street by overshadowing and overlooking of the internal courtyard and windows onto it;

Non-compliance with the DCP height control of five storeys;

Overshadowing of balconies and windows of other apartments in the vicinity;

Privacy impacts on existing apartments in the vicinity;

Reduction in property values;

The architectural design is incompatible with the area; traffic and parking impacts on the immediate local street network, including during construction;

The impact on views to the city skyline, Central Railway Station, Belmore Park and other aspects of the locality from existing residences; and

Views from the public domain to the heritage listed Edwards & Co building in Foster Street and the impact on the heritage value of this building.

83. Virtually all of the objector concerns were considered and dealt with (to the extent that changes to the proposal were appropriate to address them) by the expert conferencing process. As a consequence of these expert agreements (the outcomes of which, in my assessment, do not warrant further consideration save for my acknowledgement that I have read all of the individual and joint expert reports), those matters have been appropriately and adequately addressed to the extent that they are valid.

84. To the extent that there are agreed outcomes contained in these joint expert reports, the outcomes have included further modifications to the design in many instances. An example of this is the fact that there has been a revised construction traffic management plan prepared that has the effect of, I am satisfied, appropriately responding to the concerns of the objectors, to the extent that it is possible to do so if a construction project of this nature is to be undertaken on the site.

Internal design deficiencies

85. As earlier noted, in the Council's Amended Statement of Facts and Contentions relating to the Revision F Plans, matters were raised dealing with other matters canvassed in the objection:

• deficiencies in detail or inconsistency in the plans;

• whether there were sufficient of the proposed apartments provided with either cross-ventilation or natural ventilation (there being a difference between the two with naturally ventilated apartments being ventilated by shafts opening at the roof); and

• whether sufficient of the apartments achieved adequate solar performance.

86. As I have earlier indicated, these issues were resolved, at least in part, by the Revision G Plans whilst further progress has been made through the ongoing discussion process arising out of these appeal proceedings. All three of these matters, however, were raised by the objectors to the proposal so, it is appropriate to set out the following, relevant final positions:

• Prior to the making of orders to grant development consent, the development proponents will need to provide to the Council and the Court a set of final revised plans incorporating all the changes agreed to by the various experts as addressing internal issues and ensuring that all of the plans are consistent, one with the other. These plans will need to be provided in a fashion that satisfies the Council that the agreed positions have now been reflected in a final set of plans to which approval can be given;

• The relevant groupings of experts have now agreed that there are now an appropriate number of apartments with satisfactory ventilation (of either type earlier noted) and an appropriate number of apartments with satisfactory solar performance; and

• I have read the various individual and joint expert reports that touch upon these topics as they were tendered during the proceedings and form part of the evidence. I am satisfied that there is no basis upon which I could reject the agreed expert outcomes and require any further modification to the final agreed design (let alone refuse the project on any such basis).

Specific objector matters requiring specific comment

87. There are, however, two matters raised by the objectors to which it is appropriate that I respond specifically as they are matters that are, in one instance, entirely outside the scope of planning law to consider, and, in the other, an agreement reached between the Council and the development proponents permitting an eight story building when the DCP storey control map envisages a five storey building on the site.

Impact on property values

88. Objection is made to the proposal on the basis that a consequence of the alteration of outlook and the removal of views to the west and north-west from apartments to the east or south-east of the site will have an adverse impact on the value of the properties involved.

89. It is unnecessary for me to consider whether or not this concern is true as it is the long-settled legal position that impact of an otherwise lawfully approvable development proposal on the value of other properties is not a valid planning consideration.

90. In explaining this, I am not to be taken to be commenting on whether or not the feared negative property value outcome will follow from approval of a development of the height proposed on the site, merely that it is not a matter that I am permitted to consider as a valid part of the planning assessment of impacts of the proposal.

Views and the height of the building

91. I turn, now, to the question of the impacts of the height of the building on views to or from other properties in the vicinity.

92. There are two matters to be observed on this point. First, the LEP height limit on the site is 29m and the height of that which is proposed is 25m. The proposed development is thus compliant. Although the Council has different limits in its DCP (including a five-storey limit control where eight storeys are proposed in this development) such provisions in a development control plan, whilst requiring to be given proper consideration in a development assessment process (see Zhang earlier discussed) they do not act as a prohibiting limit. This, particularly, arises as a consequence of the outcome agreed to by the Council of an eight storey building rather than one of five storeys as proposed by the DCP.

93. In this instance, the Council no longer presses concerns arising out of the height or the number of storeys (with me being required to determine only the floor-to-floor separation earlier dealt with).

94. On the basis of the uncontradicted expert agreements, there is no proper foundation for my intervening about the height of the building, let alone being provided with any basis to refuse the proposal.

Conclusion

95. With respect to the sole issue of significance that remained in dispute between the parties (what is the appropriate method to ensure achievement of a minimum 2.7m floor-to-ceiling height in all habitable rooms within the apartments in the proposed development), I have determined that the approach advocated by the development proponents is acceptable and should be permitted.

96. All other matters (including the significant issue of an appropriate location for and dimensions of communal open space for the development) have been resolved by agreement between the experts engaged by the parties.

97. I have also considered all of the objections raised in the public submissions concerning earlier versions of the plans and the additional submissions relating to the most recently publicly notified plans (Revision G). I am satisfied that there are no other valid concerns arising out of them that have not been properly and appropriately addressed as outcomes of the expert conferencing process in these proceedings.

Directions

98. As consequence, to permit orders to be made to grant development consent to the proposal – reflecting this determination and the agreed outcomes between the parties, it is necessary for the preparation of both revised plans and revised conditions of consent. The plans and conditions will need to be settled between the parties prior to the making of orders. I therefore give the following directions:

1. The applicants are to file and serve revised settled plans reflecting the outcome of these proceedings by the close of business on Friday 2 October 2015;

2. The respondent is to file and serve (including electronically by email to my Associate) revised settled conditions of consent reflecting this determination by the close of business on Friday 2 October 2015;

3. The matter is set down for mention before me on Friday 9 October 2015 at 9:15 AM;

4. If (1) and (2) are complied with, I will make orders in chambers granting development consent based on the revised settled plans and subject to the revised settled conditions of consent and vacate the mention before me on 9 October 2015; and

5. Liberty to apply on two days’ notice to the Court and the other party if there are any further matters arising.

On 30 October 2015, after the parties provided settled revised plans and conditions of consent, Orders were made in chambers, as per the attached below, to give effect to this decision.

trinvass_2015_10_30_13_48_07_985 (1.35 MB, pdf)

Amendments

30 October 2015 - Orders made in chambers, 30 October 2015, upon receipt of lodged settled revised plans and conditions are included as an attachment.

22 September 2015 - No amendment to the substantive decision. Amendment only to cover sheet at 'Decision'.

Decision last updated: 30 October 2015