WINIM Developments Pty Limited v North Sydney Council

[2024] NSWLEC 1328

Land and Environment Court

New South Wales

Medium Neutral Citation:

WINIM Developments Pty Limited v North Sydney Council [2024] NSWLEC 1328

Hearing dates:

3-4 June 2024

Date of orders:

18 June 2024

Decision date:

18 June 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is granted leave to rely on amended plans and other documents listed in Annexure A, subject to the Applicant paying the Respondent’s costs thrown away as agreed or assessed pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(2) The appeal is upheld.

(3) Development application DA50/23 for alterations and additions to existing buildings and addition of a new five-storey rear wing extension containing three residential apartments and 42 hotel rooms above basement parking at 12A Carabella Street, Kirribilli is determined by the grant of consent subject to conditions of consent at Annexure B.

(4) All exhibits are returned, except for Exhibits A, B, H, 1 and 11.

Catchwords:

DEVELOPMENT APPLICATION – whether proposed use is permitted in R4 High Density Residential zone – heritage conservation – heritage incentives facilitate conservation - whether view loss is reasonable – public submissions are considered

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 4.65, 8.7, 8.15

Land and Environment Court Act 1979, s 39

Environmental Planning and Assessment Regulation 2021, s 38

North Sydney Local Environmental Plan 2013, cll 4.3, 4.6, 5.10, 6.10, 6.12

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Ch 6, ss 6.6, 6.7, 6.8

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Housing) 2021, ss 4, 45, 47, 48, Pt 3

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Standard Instrument – Principal Local Environmental Plan 2006

Cases Cited:

David Fox v North Sydney Council [2016] NSWLEC 1366

Fox v North Sydney Council [2020] NSWLEC 1056

George v City of Parramatta Council [2017] NSWLEC 1366

Howe Architects Pty Ltd v Ku-ring-gai Council [2021] NSWLEC 1233

Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:

North Sydney Community Engagement Policy

North Sydney Development Control Plan 2013

NSW Department of Planning and Environment, Apartment Design Guide 2015

Category:

Principal judgment

Parties:

WINIM Developments Pty Limited (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
H Irish (Respondent)

Solicitors:
Addisons (Applicant)
Matthews Folbigg (Respondent)

File Number(s):

2023/148634

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Two four-storey buildings, connected in certain ways and known together as Glenferrie Lodge Hotel, stand on the western side of Carabella Street, Kirribilli.

2. Development is proposed on the site, in the form of alterations and additions that would result in three residential apartments, and a hotel comprising 43 rooms, over basement car parking for 7 vehicles.

3. To this end, development application no. DA/50/2023 (the original DA) was lodged with North Sydney Council, the Respondent in these proceedings, on 23 February 2023, and was notified in accordance with the North Sydney Community Engagement Policy from 10-24 March 2024.

4. As the DA was not otherwise determined, the Applicant filed an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) in Class 1 of the Court’s jurisdiction on 9 May 2023.

5. On 15 March 2024, the Applicant was granted leave to rely upon amended plans and other documents. On the same occasion, the Court, exercising the functions of North Sydney Council as the relevant consent authority under s 39(2) of the Land and Environment Court Act 1979 (LEC Act), approved the amending of the DA in accordance with those amended plans and other documents.

6. The Respondent notified the amended DA from 26 March to 9 April 2024.

7. At the commencement of the hearing, the Applicant sought to further amend the amended DA by Notice of Motion, unopposed by the Respondent, on the basis that the amended plans and other documents, the subject of the Notice of Motion, were responsive to the agreed position of experts engaged on behalf of both parties.

8. In opening submissions, the Respondent identified the agreed position of the experts that the amendments at [5] and [7] resolved all of the contentions in dispute in this case, but for two particulars in respect of landscape and heritage.

9. The Court directed experts in those disciplines to confer further and prepare supplementary joint expert report that were filed at the commencement of the second day of the hearing.

10. The further supplementary joint expert report of the arboricultural and landscape experts (Exhibit F) confirmed all matters had been resolved, and the further joint expert report by the heritage experts (Exhibit G) likewise confirmed those matters in dispute were resolved.

11. In the case of Exhibit F, the experts also agreed responses in reply to three questions posed by the Court on the first day summarised as:

1. The proximity of the proposed onsite detention tank to Tree T3, a mature Fig Tree in the front setback of No 14 Carabella Street.

2. Tree T5 is proposed to be retained, with an agreed pruning plan.

3. Trees T12 and T13 in the rear yard of No 10 Carabella Street are unlikely to be adversely affected by a change in the sunlight and shadow resulting from the development.

The site and its context

12. The site is located on the ‘high side’ of Carabella Street, and the frontage is characterised by a high sandstone retaining wall other than for vehicular access on to the site, obtained via steep ramped access.

13. The frontage to Carabella Street measures 25.17m, and the site measures 43.2m deep, having a total site area of 1,207m².

14. The site itself consists of three lots, legally described as follows:

1. Lot 1 in DP 100406;

2. Lot 1 in DP 772496; and

3. Lot 2 in DP 772496.

15. The site is located in the R4 High Density Residential zone, according to the North Sydney Local Environmental Plan 2013 (NSLEP), in which residential flat buildings are permitted with consent.

16. However, tourist and visitor accommodation, such as that proposed by a hotel use, are uses prohibited in the R4 zone – a matter I consider at [22]-[32].

17. The objectives for development in the R4 zone are as follows:

•  To provide for the housing needs of the community within a high density residential environment.

•  To provide a variety of housing types within a high density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To encourage the development of sites for high density housing if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area.

•  To ensure that a reasonably high level of residential amenity is achieved and maintained.

18. The proceedings commenced with an onsite view at which the Court, in the company of the legal representatives, Applicant and experts, heard oral submissions from six residents of the immediate area, including:

1. The residents of the property to the south of the subject site, No 10 Carabella, a local heritage item.

2. Residents of Units 2 and 4, No 14 Carabella Street.

3. Residents of units in No 5-7 Peel Street, an apartment building to the west of the subject site.

19. Notes of those oral submissions were agreed between the parties and tendered on the second day (Exhibit 1). I also note written submissions received from those residents are contained in the bundle of documents prepared by the Respondent (Exhibit 3, Vol 1).

20. The Court was taken to the rear yard of No 10 Carabella Street to observe trees located along the boundary with the subject site, and to observe the private open space and rear living areas of the dwelling said to be affected by a loss of solar access.

21. The Court was also taken to Unit 7, 5-7 Peel Street to observe the outlook, and to consider the bulk, scale and setback of the proposed development depicted in the View Impact Assessment prepared by Bonus + Associates (VIA) (Exhibit B, Tab 1).

Is the proposed land use prohibited?

22. That part of the proposal that is for use as a hotel is for a use that is prohibited by reference to the land use table.

23. The Applicant’s primary submission is that, notwithstanding the land use table, the proposed development is permitted by virtue of what is commonly termed the ‘heritage incentive’ provisions at cl 5.10(10) of the NSLEP.

24. The Applicant relies on authorities to submit the terms of cl 5.10(10) have been consistently applied by the Court where it has been found that the conservation of a heritage item is facilitated by the grant of consent, where that conservation retains the cultural significance of the item, and reveals and interprets the heritage significance of the item (David Fox v North Sydney Council [2016] NSWLEC 1366 at [47]; Fox v North Sydney Council [2020] NSWLEC 1056 at [33]; George v City of Parramatta Council [2017] NSWLEC 1366 at [56]).

25. Furthermore, as stated by Commissioner O’Neill in Howe Architects Pty Ltd v Ku-ring-gai Council [2021] NSWLEC 1233 at [78]:

Once an application is made pursuant to the heritage incentive clause for a purpose that would otherwise be a prohibited use under the LEP, then the role of the consent authority is to assess the application pursuant to s 4.15 of the EPA Act and to exercise the discretion to grant consent under cl 5.10(10) of the LPE in relation to the proposed use if the consent authority is satisfied of all the matters (a) to (e).

26. Clause 5.10(10) relevantly provides:

(10) Conservation incentives The consent authority may grant consent to development for any purpose of a building that is a heritage item or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance, even though development for that purpose would otherwise not be allowed by this Plan, if the consent authority is satisfied that—

(a)  the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and

(b)  the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and

(c)  the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and

(d)  the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and

(e)  the proposed development would not have any significant adverse effect on the amenity of the surrounding area.

27. The Applicant’s position is supported by two written opinions in respect of the provisions at cl 5.10(10).

28. In the first instance, the Applicant’s heritage expert, Mr John Oultram prepared a written opinion dated 4 March 2024 (Exhibit A, Tab 12) in respect of subcll (a)-(d) that may be summarised as follows:

1. In respect of subcl (a), the conservation of the heritage item is facilitated by consent because the primary use of the site has been that of a hotel since the 1940’s. Such a continuation of the use retains the early internal cellular layout, features and details of original fabric including the two common rooms, the timber stair and central halls.

2. In respect of subcl (b), there is no heritage management document yet approved by the consent authority with which the proposal could accord. However, the Applicant has prepared a Conservation Management Plan (CMP) intended to serve that purpose, and a Schedule of Conservation Works.

3. In respect of subcl (c), the CMP and Revised Schedule of Conservation Works (Exhibit B, Tab 3) set out the terms by which conditions of consent may require conservation of the heritage consistent with the heritage management documents prepared for that purpose.

4. In respect of subcl (d), the proposal allows for the form, layout, external and internal details of the heritage item to be retained whereas alternative and permissible uses such as residential apartment development would result in the loss of such fabric.

29. In the second instance, the Applicant relies on the written opinion of Mr Jeff Mead, planning expert for the Applicant, dated 4 March 2024 (Exhibit A, Tab 11) as to whether the proposal would have any significant adverse effect on the amenity of the surrounding area, being the focus of subcl (e).

30. Mr Mead’s opinion is that the retention of the historic use of the site as a hotel brings with it impacts identical to those evident today but with the additional opportunity to impose on the development conditions of consent that better regulate impacts such as access, noise and the like through a Plan of Management. While these impacts are addressed in greater detail in a written request prepared in accordance with cl 4.6 of the NSLEP that is considered at [33]-[56], Mr Mead’s opinion as to impacts on the amenity of the area is summarised as follows:

1. Shadow diagrams depict additional overshadowing to No 10 Carabella Street that does not reduce solar access to less than five hours in mid winter, in excess of the minimum of three hours required by Part B1.3.7 of the North Sydney Development Control Plan 2013 (NSDCP).

2. Visual and aural privacy are minimised by providing appropriate setbacks and positioning of glazing, such a limiting glazing to the side boundaries to fixed, obscure or highlight windows only. Where balconies are proposed, they are limited in number and size, and do not align with windows in habitable rooms and balconies on adjoining properties, and where open space is provided in the rear setback, private open space to an apartment replaces communal open space that was a place of activity and a source of noise.

3. View impacts are assessed by a detailed View Impact Assessment prepared by Bonus + Associates (VIA) (Exhibit B, Tab 1) that analyses the view impact from properties at 1-3 Peel Street, 5-7 Peel Street, 14 Carabella Street and 20 Carabella Street, and considers the view impact in terms set out in the planning principle in Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140.

4. Traffic and parking impacts are considered by reference to the traffic generated by the proposal, and arrangements for access into the basement carpark accommodating seven cars and eight bicycles, in respect of which the Traffic and Parking Assessment Report prepared by Greenview Consulting (Exhibit A, Tab 21) concludes no significant impact arises.

The Respondent’s position

31. The Respondent initially contended that the Applicant identifies no alternative source of power for the Court to grant consent beyond that power at cl 5.10(10) and that as the Court is unassisted by evidence as to whether ‘existing use’ applies to the site, pursuant to s 4.65 of the EPA Act, it is unable to make any findings on the existing use of the land.

32. It is also unnecessary to make such a finding, as the Respondent acknowledges the source of power to grant consent, should the Court be so minded, derives from cl 5.10(10) that has been sufficiently made out.

The Height standard is exceeded

33. The proposed development exceeds the height of building standard of 12m, shown on the relevant map at cl 4.3(2) of the NSLEP.

34. Clause 4.6(2) of the NSLEP permits the grant of consent even though a development may contravene a development standard.

35. That said, cl 4.6(3) and (4) constrain the grant of consent in the following ways:

(3)  Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating—

(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.

(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 Planning Secretary has been obtained.

36. A written request to vary the height standard prepared by Planning Ingenuity dated 12 February 2024 (Exhibit A, Tab 10) states the proposal has a maximum height of 15.57m when measured at the highest point of the roof.

37. The planning experts record their agreement in the joint expert report (Exhibit 6, pp 4-5) as to the calculation of the exceedance, and that, for some dwellings, there is no impact on existing views either because no views are available from those dwellings due to obstruction by the envelope of the existing Glenferrie Lodge Hotel or because the elevated location of the dwelling provides views unimpeded by both the existing and proposed building envelopes of Glenferrie Lodge Hotel.

38. While there is no area of disagreement between the experts in respect of the height exceedance, nor its impact on nearby properties, it is the Court that must be satisfied as to those matters at cl 4.6 of the NSLEP for the Court’s power to grant development consent to be enlivened.

39. The written request asserts that the objectives of the height standard are achieved notwithstanding non-compliance with the standard, because the objectives of the height standard at cl 4.3 are achieved.

40. The objectives at cl 4.3 of the NSLEP relevantly provide:

(a)  to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient,

(b)  to promote the retention and, if appropriate, sharing of existing views,

(c)  to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development,

(d)  to maintain privacy for residents of existing dwellings and to promote privacy for residents of new buildings,

(e)  to ensure compatibility between development, particularly at zone boundaries,

(f)  to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area,

…

41. In respect of objective (a), the written request states the exceedance varies across the site due to the cross fall of 3.2m when measured from east to west, however basement and ground floor levels are determined by the existing heritage item, beyond which landscaping treatment maintains existing levels to adjoining properties so that no topographical or scenic impacts result.

42. In respect of objective (b), the retention and sharing of existing views is assessed by the VIA that summarises the view impact for each building assessed as follows:

“- 1-3 Peel Street, no impact on primary views of Circular Quay, Sydney Opera House, and Farm Cove available to the southeast due to aspect and orientation of building.

- 5-7 Peel Street, no existing views are available from levels 1-3 due to the envelope of existing buildings, no impact on views available from levels 5-8, minor impact on views available from apartments 14 and 15 on level 4.

- 14 Carabella Street, negligible impact on views across side boundary due to existing Glenferrie building envelope and substantial trees.

- 20 Carabella Street, no existing views are available from levels 1-4 due to the envelope of existing building at 14 Carabella Street, no impact on views available from level 7, negligible to minor impact on views available from apartments 33, 34 and 35 on level 5 and apartments 40, 41 and 42 on level 6.”

43. The written request also cites the assessment undertaken in the VIA of the four ‘Tenacity’ principles to conclude that when the impacts of the proposal are compared with those expected of a compliant building, there is no significant view loss and view sharing is achieved.

44. In respect of objective (c), shadow diagrams depict shadows on No 10 Carabella Street that is already overshadowed in part by the existing built form on the subject site, and by other neighbouring development, between 9am-12 noon and is not further exacerbated by the proposed development envelope. The overshadowing that occurs from 11am onwards is similar if not identical to the overshadowing by existing development. That which occurs prior to 11am does not reduce solar access to less than 5 hours in mid winter, which is in excess of the minimum of 3 hours as stated at [30].

45. In respect of objective (d), the written request states the portion of non-compliance with the height standard does not contain any terraces or living areas that give rise to privacy impacts, and window openings do not align with adjoining properties to the north and south.

46. In respect of the compatibility between development sought by objective (e), the number of storeys proposed is consistent with existing development in the area of between three and nine storeys in height, set behind the existing heritage item when viewed from Carabella Street. Existing development in the immediate vicinity of the site varies in height, style and periods to form an eclectic character. However, the proposal adopts the predominant characteristic of sandstone base, brickwork and light-weight upper level that respects visual cues to surrounding heritage items in the area.

47. In respect of objective (f) which seeks an appropriate scale and density of development that accords with, and promotes, the character of the area, the height standard of 12m anticipates a four-storey building on the site, being the scale of development proposed when viewed from Carabella Street. The additional storey to the rear is a result of the change in topography that permits a lower level sunken into the site, and where the exceedance is predominantly located in the middle of the site so as to be unobtrusive from the public domain. As adjoining development varies from six storeys, at 29 Carabella Street, to eight and nine storeys in development to the rear at Nos 1-3 and 5-7 Peel Street, the height proposed mediates appropriately between such existing development that nevertheless shares the 12m height standard.

48. Next the written request advances environmental planning grounds it regards as sufficient to justify the contravening of the height standard as follows:

1. The height standard of 12m essentially ignores the height of the existing building of 15.8m, which is the approximate height of the proposal, albeit with a protrusion beyond towards the middle of the site where the topography steps down to its lowest point.

2. The exceedance, which occurs predominantly at the lift overrun and stairs, occurs around 18m from the Carabella Street setback, minimising its visibility from the public domain.

3. That portion of the development that exceeds the height standard also includes upper ceiling space, corridors and roof form with limited openings to cause adverse privacy impacts for adjoining development.

4. For reasons that are virtually identical to those at [47], the proposal’s height is in keeping with the existing and desired future character of the area, and with the density and scale of its surrounds.

5. The roof form of the uppermost level that exceeds the height standard is flat, with increased setbacks to the rear and side boundaries so that the rear addition does not protrude beyond existing side setbacks.

6. The existing buildings on the site are local heritage items that are to be conserved. As I understand this planning ground, it is to the effect that as demolition is not an option for the Applicant, the opportunity to develop anew to a height that complies with the standard is also not an option. Instead, the retained heritage fabric reflects a height of 15.8m, and the proposal is reflective of such height, bulk and scale.

7. The eclectic character of building heights, architectural styles and periods in the area is essentially more forgiving of a built form with a non-compliant height when that portion of the development with the exceedance is purposefully recessed from the street frontage where such an eclectic character is most perceived.

8. The additional housing that results from that portion of the development that exceeds the height standard delivers a social benefit that would be forgone if strict compliance is required. That portion of the exceedance that provides hotel accommodation would likewise be forgone and so deny the community of North Sydney the economic and social benefits of hotel accommodation in a highly sought after area of Sydney.

9. There is a lack of any significant material impacts on adjoining properties such as additional overshadowing, privacy or view loss.

10. The proposal is consistent with the objectives for development in the R4 zone, and with certain objects of the EPA Act.

49. Finally, the written request asserts consistency with the objectives of the zone, at [17], because the development proposes three apartments, of three and four bedrooms in size, that provide for the housing needs of the community and do so in a manner that provides variety in the locality, and where the hotel component may serve the economic needs of the community. Finally, the proposal seeks to maintain the amenity of surrounding properties and the public domain by locating development to the rear of the site and in a manner that does not compromise the heritage values of the site, yet provides for high levels of residential amenity to the apartments.

50. I note here that the Respondent is satisfied that the written request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the NSLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development in the R4 High Density Residential Zone.

51. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for state or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the NSLEP.

52. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the height standard under cl 4.3 is justified.

53. I am satisfied under cl 4.6(4) that the height request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development within the R4 High Density Residential Zone, for the reasons given in the request, summarised above.

54. In forming this opinion of satisfaction, I note the floor to floor height of the proposal is essentially established on Levels 1-3 by those levels in the existing heritage item, which contributes to height of the development to the rear when compared to levels generally assumed in residential flat buildings.

55. Where views are impacted by the height exceedance, I accept the agreement of the planning and urban design experts who conclude, after assessing the VIA, that notwithstanding a minor incursion into the Athol Bay view from some apartments in 5-7 Peel Street, the pre and post development views have very similar characteristics and scope, and so the impact on apartments in 5-7 Peel Street is reasonable. Where public submissions object to the development at the rear, those objections are largely about the proximity of the proposal to apartments at 5-7 Peel Street which the experts agree is acceptable due to the provision of that setback being consistent with guidance provided by the NSW Planning and Environment, Apartment Design Guide (2015).

56. I have also considered whether the contravention of the development standard raises any matter of significance for state or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the NSLEP and I find no grounds on which the Court should not uphold the height request.

Heritage conservation

57. The site is identified as a local heritage item with the following entry recorded in the State Heritage Inventory listing sheet, according to the Supplementary Heritage Impact Statement prepared by John Oultram Heritage & Design (Exhibit A, Tab 14):

“A good example of a large Federation period residence. It is in a row of individualistic though similar Federation buildings which together show the variety of this style. The interior is also of significance.” (p 6)

58. The site is also located within the Kirribilli Heritage Conservation Area (Kirribilli HCA) the significance of which is defined at Part C8.4 of the NSDCP in the following terms:

“The Kirribilli Conservation Area is significant:

(a) as a consistent early 20th century residential area with a mix of Federation and one or two storey Inter War dwelling houses and two or three storey residential flat buildings on large allotments with a strong orientation to the water.

(b) as a largely intact early 20th century suburb retaining much of the urban detail and fabric seen in gardens, fencing, street formations, use of sandstone and later reinforced concrete “naturale” fencing, sandstone kerbing, natural rock faces, wide streets and compatible plantings.

(c) for its unity derived from its subdivision history which is still clearly seen in the development of the area.

(d) as containing the important government buildings Kirribilli House and Admiralty House.”

59. The proposal is supported by the following heritage documents:

1. Statement of Heritage Impact, prepared by GBA Heritage dated February 2023 (Exhibit A, Tab 33)

2. Conservation Management Plan, prepared by GBA Heritage dated February 2023 (Exhibit A, Tab 34)

3. Supplementary Heritage Impact Statement, prepared by John Oultram Heritage & Design dated February 2024 (Exhibit A, Tab 14)

4. Revised Schedule of Conservation Works prepared by John Oultram Heritage & Design dated May 2024 (Exhibit B, Tab 3)

60. As stated earlier, the DA as amended relies on the provisions of cl.5.10(10) inasmuch as the proposed use of the site as a hotel is prohibited by the land use table in the NSLEP.

61. The heritage experts agree that the Court can be satisfied of those matters about which it must be satisfied at cl 5.10(10) for reasons summarised as follows:

1. The conservation of the building will be facilitated by allowing use of the property as a private hotel under cl 5.10 (10) of the NSLEP, which I understand has the advantage of retaining the layout of rooms, features and details with those evident today.

2. On the basis of an amended Schedule of Conservation works, prepared by John Oultram Heritage & Design dated May 2024 (Exhibit B, Tab 3), the heritage experts agree that the proposed development now provides for conservation works, and cyclical maintenance works that are sufficient to demonstrate conformity with cl 5.10(10)(b) of the NSLEP, and is in accordance with the heritage management documents at [59] that are now confirmed by the Respondent as acceptable.

3. Condition 13 of the Draft Conditions of Consent prepared by North Sydney Council requires that all necessary conservation work identified in the heritage management documents to be carried out prior to the Occupation Certificate.

4. Additionally, the experts agree that a revised schedule of materials and finishes (Exhibit B, Tab 2) integrates new building elements with heritage fabric and the landscape setting in an appropriate manner. As such, the proposed development will not adversely affect the heritage significance of the heritage item, including its setting.

62. The experts agree that, from a heritage perspective, the DA as amended now meets the requirements of cl 5.10(10) (a)-(d) of the NSLEP.

63. The Applicant also relies upon three documents annexed to Exhibit C, being:

1. an opinion of probable cost prepared by WT Partnership, dated 31 May 2024 providing an estimate of $5,024,042 for works set out in the Schedule of Conservation Works at [59(4)], and an additional estimate of $2,374,200 for maintenance;

2. letter from Northstar Chartered Accountants dated 28 May 2024 stating the current operators of Glenferrie Lodge Hotel are currently operating at a loss; and

3. details as a Fire Safety Order issued by the Respondent on 23 May 2023, and an estimate of $2,116,733 for works required to comply with the Fire Safety Order.

64. I note here the heritage experts are of the view those costs associated with the Revised Schedule of Conservation works appear to reflect the extent of works proposed therein. (Exhibit G, par 10B)

65. For the reasons outlined above, I accept the agreed position of the heritage experts that the proposed development will not adversely affect the heritage significance of the heritage item, or its setting, which I understand to be reference to the Kirribilli HCA and those heritage items in the vicinity of the site.

Matters for consideration – North Sydney Local Environmental Plan    

66. The proposed development comprises earthworks in the form of excavation. The Respondent initially contended that there was no provision for the appropriate storage and removal of excavation material from the site, that might lead to erosion or sediment escape, nor was there adequate identification of plant and equipment required to effect the excavation.

67. Clause 6.10(3) of the NSLEP sets out matters to be considered in respect of earthworks that are more expansive than the narrow compass of the contentions initially pressed by the Respondent. In respect of those matters to be considered at cl 6.10(3) of the NSLEP:

1. Civil design drawings prepared by Greenview Consulting (Exhibit A, Tab 6, and Exhibit B, Tab 8) depict subsoil and surface drainage, the location, volume and depth of an onsite detention and rainwater tanks, and filtration nominated as Ocean Protect Ocean Guard.

2. Erosion and Sediment Control Plans prepared by Greenview Consulting (Exhibit B, Tab 4) detail silt and sediment weirs, and the layout of certain site management strategies to management noise, vibration, dust, odour and the like.

3. A Geotechnical Site Investigation report, prepared by Crozier Geotechnical Consultants dated November 2022 (Geotechnical Report) (Exhibit A, Tab 32) describes the proposed excavation to be 6.45m in depth, to abut the northern boundary, and to have varied setbacks to the west and south.

4. Ground conditions, verified by three boreholes, encountered rock strength varying between low/medium to high. The groundwater table was not intersected during investigation, and so lowering of the watertable is not expected. Accordingly, Acid Sulfate Soils are also not expected to be impacted.

5. The Geotechnical Report also recommends vibration limits of between 3-5mm/sec is adopted, rock sawing be used, and retaining structures such as soldier piling or similar be used for excavation support.

6. A structural engineering report prepared by Cadigal Group dated 27 February 2024 (Structural Report) (Exhibit B, Tab 16) considers the structural stability of the existing buildings, a construction methodology, underpinning and excavation details, basement shoring types and locations.

68. I have considered those documents set out at [67], and conclude the matters at cl 6.10(3) are adequately addressed such that the earthworks for which consent is sought will not have a detrimental impact on environmental functions or processes, neighbouring uses, cultural or heritage items or features of surrounding land.

69. Where residential flat buildings are proposed in an R4 zone, as is the case here, cl 6.12 of the NSLEP precludes the grant of consent for such a purpose unless adjoining land, on which a single dwelling, dual occupancy or semi-detached dwelling is located, is at least 900m². The parties agree that the dwelling house on No 10 Carabella Street is on land of at least 900m², according to searches for which evidence is provided at Exhibits H and 11.

Design excellence

70. The Respondent initially contended that the proposal did not acceptably integrate the proposed new building elements with the heritage fabric and landscaped context of the site.

71. The particulars refer to an unsympathetic form and scale and to materials and finishes proposed.

72. In the joint exert report (Exhibit 6), the heritage, planning and urban design experts agree that the proposed form and scale is now sympathetic to the existing heritage item, and the proposed additions to the heritage item are of an acceptable scale.

73. Likewise, those experts further agree that the proposed development will not detract from the amenity of existing adjoining development including visual impact, views, solar access, acoustic privacy, and visual privacy.

74. On the basis of an updated schedule of materials and finishes, the experts additionally agree that the updated schedule of materials and finishes, which proposes a sandstone base course and painted brick external walls successfully integrate the new building elements with the heritage fabric and landscaped context of the site.

75. I note here that the NSLEP does not contain provisions in respect of design excellence that apply to the subject site, and the Court was not taken to provisions that would require the Court to form an opinion, or state of satisfaction in respect of design excellence.

76. As such, and absent evidence to the contrary, the Court accepts the agreed position of the experts at [72]-[74].

Landscape and Tree Loss

77. The Respondent initially contended the proposal would unreasonably impact trees on adjacent land.

78. An Arboricultural Impact Assessment prepared by Blues Bros Arboriculture dated 9 February 2024 (Arborists Assessment) (Exhibit A, Tab 19) assesses 15 trees within the scope of the proposed development; including nine trees on the subject site, four neighbouring trees and two street trees.

79. Four trees are identified as having high significance:

1. Tree T2, a mature plane tree;

2. Tree T3, a mature Morton Bay Fig;

3. Tree T5, a mature Blackbutt; and

4. Tree T6, a Port Jackson Fig.

80. All of the trees identified above are proposed to be retained, and are subject to a Tree Protection Plan.

81. Tree T3 is located in the front setback of the adjoining property at No 14 Carabella Street. The existing driveway is in close proximity to T3. Photographs of root mapping undertaken by the Arborist for the Applicant, Mr Gordon Blues, was limited due to the location and structural thickness of the existing paved driveway. Photographs of the root mapping are contained in Appendix 2 of the Arborists Assessment.

82. The Aboricultural experts agree it is likely the slab has formed a barrier for root development, however this will only be known once the driveway has been removed.

83. It is with this contingency in mind that the Applicant has prepared an alternative ground floor plan and elevation to Carabella Street. Should significant roots to T3 be identified during construction, the experts agree driveway widening should be located to the southern side of the existing alignment, as shown on the alternative plan and elevation.

84. The Court also sought the opinion of the arboricultural experts in respect of the location, size and depth of the proposed OSD that appears within the Tree Protection Zone (TPZ) of T3. The experts explain the root mapping was designed to excavate to a depth of 800mm, being the approximate depth of the OSD.

85. The engineering experts agree that a further contingency in the event of unexpected discovery of significant roots is to split the OSD into 2 smaller tanks that is permissible by virtue of an entitlement on the site for two connections to Carabella Street for stormwater discharge. (Exhibit F, p 11)

80. In public submissions, the residents of No 10 Carabella Street express concern for the continued viability of two trees in the rear yard of their property, Trees T12 and T13.

81. In response to a question from the Court, the arboricultural experts confirm that:

1. Pruning of T12 is required to achieve a 1-1.5m clearance to the development proposed at the rear of the subject site, that is agreed to be within an acceptable limit for such a tree. Tree T13 does not require pruning.

2. Tree T12 is approximately 14m high, and will experience some loss of direct sunlight but will adapt its growth habit to new conditions and likely grow in an upright form to develop a crown spread over the proposed development.

3. Excavation of the basement will result in an incursion of around 6% into the TPZ of T12, which is acceptable. No encroachment into the TPZ of T13 is expected.

88. On the basis of the Arborists Assessment, and agreement between the experts as to the proposed retention, pruning and viability of trees recorded in joint expert reports (Exhibits 7, D and F), I consider those matters dealt with by Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) to be satisfactorily addressed.

89. The site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map from the Biodiversity SEPP. The parties agree the site is not a strategic foreshore site, a heritage item on the Sydney Harbour heritage map or land within a wetlands protection area.

90. Section 6.6 of the Biodiversity SEPP precludes the grant of consent unless the Respondent council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised.

91. I am satisfied that s 6.6 of the Biodiversity SEPP is achieved by providing sediment control and filtration to water in the post-development scenario in a manner that achieves a neutral or beneficial effect on the water quality and water flow into the harbour.

92. For similar reasons I have also considered those matters at s 6.7 of the Biodiversity SEPP and am satisfied that the retention of water and post development flows will keep any direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation to a minimum, and will not have an adverse impact on aquatic reserves, or in terms of erosion.

State Environmental Planning Policy (Resilience and Hazards) 2021

93. On the basis of the detailed historical assessment of the site that appears in Statement of Heritage Impact, and the Supplementary Heritage Impact Statement, prepared by John Oultram Heritage & Design, both cited at [59], and the surficial fill characteristics referred to in the Geotechnical Report cited at [61] I accept the site is unlikely to be contaminated and is suitable for the purpose for which development is proposed to be carried out, pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.

State Environmental Planning Policy (Building sustainability Index: BASIX) 2004

94. The application is accompanied by a BASIX certificate (Cert No. 1364083M_04 dated 1 March 2024) prepared by Greenview Consulting Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP 2004).

95. The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that have the effect of saving the Amended DA from the provisions of Sustainable Buildings SEPP.

Public submissions

96. Where not otherwise considered in the decision above, I will now consider those issues raised in public submissions by general topic area.

Site coverage

97. Public submissions express concern for a non-conformity with the Site Coverage controls at Part B1.5.5 of the NSDCP which prescribes a maximum site coverage control of 45% of the site.

98. The existing site coverage is 39.6% of the site, and the proposed site coverage is expressed on architectural plan TP04.51 as 50.7%.

99. I consider this exceedance acceptable when balanced against the proposed landscape area that complies with the requirement of 40% at Part B1.5.6 of the NSDCP, the increase in deep soil area from that evident today, and the unbuilt upon area of 11.7% that is within the maximum of 15%.

Operation of hotel

100. Public submissions express concern at the intensification of traffic, noise and deliveries should the bar facility proposed on the lower ground floor of the hotel be open to the public.

101. The parties agree it is appropriate to impose a condition of consent that limits the operation of the bar and restaurant to 42 registered guests of the hotel, and are not to be made available to others who are not guests of the hotel. Such a condition appears at Conditions I2 and I21.

Traffic

102. A number of public submissions note the congestion evident at times in Carabella Street, and the difficulty in finding on street parking, with concern expressed as to the potential for such both issues to be exacerbated by the development.

103. The Traffic Impact and Parking Assessment prepared by Greenview Consulting dated 31 January 2024 (Exhibit A, Tab 21) correctly identifies Carabella Street as a one-way street, and:

1. Assesses the onsite parking provision to comply with Part B10 of the NSDCP, which expresses car parking provision in terms of a maximum.

2. States that waste collection is proposed to occur onsite, in lieu of the kerbside collection utilised currently.

3. Concludes that an increase in traffic movements is expected, of six more vehicles in the AM and PM periods.

104. A Plan of Management, authored by Planning Ingenuity dated 21 February 2023 (Exhibit A, Tab 37) requires, at section 4.8, the promotion of public transport options for guests, and identification of off-street parking options in the vicinity of the site. Additionally, the visitor drop off and pick up is nominated to occur on site in a zone dedicated for that purpose.

Loss of affordable rental housing

105. Public submissions raise concern as to the loss of affordable housing in the area due to the proposed development.

106. The Respondent submits that, absent evidence to the contrary, the Court may accept the Applicant’s argument that Part 3 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) does not apply to the proposed development.

107. Part 3 seeks the retention of existing affordable rental housing that is relevantly defined at s 45 of the Housing SEPP, as follows:

low-rental residential building means a building used, during the relevant period, as a residential flat building containing a low-rental dwelling or as a boarding house, and includes a building that –

(a) is lawfully used as a residential flat building containing a low-rental dwelling or as a boarding house, irrespective of the purpose for which the building may have been erected, or

(b) was used as a residential building containing a low-rental dwelling or as a boarding house, but the use has been changed unlawfully to another use, or

(c) is vacant, but the last significant use of which was as a residential flat building containing a low-rental dwelling or as a boarding house.

108. While a boarding house is not defined in s 45 of the Housing SEPP, s 4(2) provides that where not otherwise defined, words in the Housing SEPP have the same meaning as in the Standard Instrument – Principal Local Environmental Plan 2006.

109. ‘Boarding house’ is defined in the standard instrument as follows:

Boarding house means a building or place –

(a) that provides residents with a principal place of residence for at least 3 months, and

(b) that contains shared facilities, such as a communal living room, bathroom, kitchen or laundry, and

(c) that contains rooms, some or all of which may have private kitchen and bathroom facilities, and

(d) used to provide affordable housing, and

(e) if not carried out by or on behalf of the Land and Housing Corporation – managed by a registered community housing provider.

110. A low-rental dwelling is likewise defined at s 45 of the Housing SEPP in the following terms:

Low-rental dwelling means a dwelling that was let at a rental level no greater than the median level during the relevant period in relation to a dwelling –

(a) of the same type, and

(b) with the same number of bedrooms, and

(c) in the same local government area.

111. The relevant period to which the definitions above are directed is defined as:

Relevant period means the period commencing 5 years before the day on which the development application involving the building is lodged and ending on that day.

112. As the original DA was lodged on 23 February 2023, the relevant period is the period between 23 February 2018- 23 February 2023.

113. During this period, the Respondent submits the definition of ‘boarding house’ changed, however nothing turns on this and ultimately the Respondent agrees with the Applicant’s submissions to the effect that contributions for affordable housing of a kind provided for in s 48 of the Housing SEPP do not apply in the circumstances of this case.

114. A similar position is advanced in the letter of advice prepared by Mr Jeff Mead dated 28 February 2024 (Exhibit A, Tab 9), supported by annexures, in which the operation of Glenferrie Lodge Hotel is defined as other than a residential flat building containing a low-rental dwelling, which does not provide affordable housing nor answer the description of a boarding house, and has not answered such a description at any time in the relevant period.

115. In the alternative, Mr Mead also considers the criteria at s 47(2) of the Housing SEPP to conclude the amount of affordable housing in the area will not be reduced in an area that is otherwise well served by boarding houses, and where the proposal is not likely to result in adverse social or economic impacts on the community. As Glenferrie Lodge Hotel does not accommodate long term residents, no residents will be displaced. Finally, as the site is not a boarding house or any other kind of affordable housing, it is unreasonable to impose a monetary contribution for the loss of housing that is not provided on the site.

116. As such, it is commonly held that Part 3 of the Housing SEPP does not apply to the proposed development and so those matters at s 47(2) of the Housing SEPP that must be taken in to account are not relevant in the circumstances of this case.

Construction impacts

117. The impact of construction on neighbouring properties and residents is of obvious concern in public submissions. An amended Construction Management Plan prepared by LID Consulting dated 29 May 2024 provides for the following:

1. Part 3.2 Work zone is necessary to carry out the development, and a permit will be needed.

2. Part 4 Site Coordination – intends to limit impacts on residents

3. Part 3.7 cranes will be necessary, and a permit will be needed

4. Part 4.2.5 working parking will be needed and Council permits will be needed.

5. A number of conditions seek to limit the impact of development on residents and the use of Carabella Street, including:

• C1 requiring detailed Construction Management Program

• C7 requiring a work zone permit

• E2 requiring existing public parking provision to be maintained and observed

• E3 requiring safety of public footways and roadways

• E8 and E9 – dust emissions and air quality and noise and vibration

118. Noise impacts during construction are assessed in a Construction Noise & Vibration Management Plan prepared by Acoustic Dynamics dated 2 February 2024.

Conclusion

119. For the reasons set out in the decision above, I conclude the proposed development is deserving of the grant of consent, subject to conditions of consent, pursuant to s 4.16 of the EPA Act.

120. The Court notes that:

1. The Court, exercising the functions of North Sydney Council as the relevant consent authority under s 39(2) of the Land and Environment Court Act 1979, approves, under s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending the development application in accordance with documents and revisions to documents set out in Annexure A to this decision.

Orders

121. The Court orders that:

1. The Applicant is granted leave to rely on amended plans and other documents listed in Annexure A, subject to the Applicant paying the Respondent’s costs thrown away as agreed or assessed pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

2. The appeal is upheld.

3. Development application DA50/23 for alterations and additions to existing buildings and addition of a new five-storey rear wing extension containing three residential apartments and 42 hotel rooms above basement parking at 12A Carabella Street, Kirribilli is determined by the grant of consent subject to conditions of consent at Annexure B.

4. All exhibits are returned, except for Exhibits A, B, H, 1 and 11.

……………………

T Horton

Commissioner of the Court

Annexure A

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Decision last updated: 18 June 2024