BKA Architecture v Council of the City of Sydney

Evidence

A conciliation conference under s34 of the Land and Environment Court Act (LEC Act) commenced on site on 22 July 2016. The parties did not reach agreement and the conciliation conference was terminated on 14 October 2016 and the matter proceeded to a hearing under s34(4)(b)(i) held forthwith. The Parties agreed that the site view and the discussions in the s34 conciliation conference could be evidence in the proceedings. At the commencement of the proceedings, the applicant sought and was granted leave to rely on amended plans, which consolidated the modifications in both s96 Applications (Exhibit D).
A joint report was prepared by the planning experts, Mr A Darroch, for the applicant, and Ms E Murphy, for the council. Ms K Castellanos and Mr G Patch, for the applicant, and Mr T Smith, for the council prepared a joint report on the urban design and heritage contentions. The experts, other than Ms Castellanos, also provided oral evidence to the Court during the hearing on further amended plans (Exhibit F), for which leave was granted. These plans addressed issues in relation to heritage impacts of the modification applications raised by Mr Smith. Heritage
Mr Smith's key concern was the impact of providing attic bedrooms in the roof space of the existing hotel. His initial concerns about the proposed dormer windows were addressed by the deletion of these elements and their replacement with skylights that did not change the form of the roof. Mr Smith remained concerned about the removal of ceilings in Units 5 and 6 to provide stair access to the attic bedrooms. In his opinion, the ceilings were original fabric (1920s) and even if they were a later addition (1950s), they were detailed in a sympathetic manner to the original and were of significance. While some of the ceiling in Unit 5 was damaged this could easily be repaired. He acknowledged that the Consent approved the removal of all of the walls in the location of the proposed stairs, which would have necessitated the removal of the ceilings and cornices. He accepted that the detailing in the Exhibit F plans would achieve a better heritage outcome than the Consent. Although, this would be further improved if the proposed stairs to the attic were removed from the application.
Mr Patch considered that some of the upstairs ceilings was probably not original fabric and had been replaced in the 1950s when fire proofing work was undertaken. Furthermore, he considered the ceiling in Unit 5 had water damage and may require removal. He noted that the Conservation Works Report (Conservation Report) he prepared, and updated in July 2016, were "provisional" and that further work was required to assess the significance and condition of the ceilings. However, in his opinion, the proposed stairs to the attic were an appropriate change to the item that did not adversely affect its significance, particularly when compared to the Consent.
Both experts supported the detailing in the Exhibit F plans, which is unrelated to the modification application, but would conserve more original fabric and spaces than the Consent, particularly in the ground floor parlour and adjoining entrance stair/hall and the fireplaces. Mr Smith recommended that to better conserve the fireplace in unit 6, it should be a one bedroom unit (proposed 2 bedroom) and unit 5 should be a two bedroom unit (proposed 1 bedroom), thereby removing the requirement for a new door opening adjoining the fireplace, for which there is insufficient room without altering the fireplace. Mr Patch supported this amendment and the applicant filed amended plans which reflect this change on 21 October 2016. These are the plans which, if approved, would modify the Consent. Findings
The heritage listing for the Duke of Wellington Hotel includes its interiors and the Heritage Inventory Sheet (HIS) identifies that the "rooms on the first level are largely intact" and the Recommended Management includes that the "principal room layout and planning configuration as well as significant internal original features including ceilings, cornices, joinery, flooring and fireplaces should be retained and conserved". The Conservation Report identifies that the fibrous plaster ceilings have high significance and should be retained. Although, the Conservation Report - Internal Works states that the ceilings and cornices "can be retained to some areas where wall/cornice junction is to be maintained".
Whether the upstairs ceilings are original or a latter addition they contribute to the significance of the item and it is unlikely that, where there is damage, it could not be repaired. Consequently, the preferred conservation policy would be that the ceilings and cornices and the spacial arrangement of the rooms should be retained. However, the experts have agreed that the Consent, through the total removal of walls, effectively approved the removal of ceilings and cornices in the areas where the proposed stairs are to be located. Whereas, the detailing in the Exhibit F plans retains nib walls and "openings in the walls with lintels supporting the wall above the opening and allowing the original cornices to remain in place and interpret the original room configuration". The experts agree that this results in a better heritage outcome than that approved in the Consent.
Dr Smith, for the council, submits that the Court could approve the heritage works proposed in Exhibit F while not approving the stairs and attic rooms. However, I accept Mr Staunton's submission that this would result in an effective dismissal of the s96B application as the conservation works are included only on the basis of the approval of the increased GFA, and, if refused, the Consent can be implemented without the conservation works.
In accepting that the s96B application would better conserve the heritage significance of the item than the Consent, I note that it is of concern that the Heritage Impact Statement prepared for the original development application and the Conservation Report did not clearly identify the grading of significance of the interiors of the item to better manage the extent of change that could occur and that the Consent, which is only recent, is now found to not adequately maintain the interior of the item. Floor space ratio
The planning experts agree that the increase in FSR does not increase the envelope of the development but results from the infilling of the "voids" and the use of the roof space of the existing hotel for additional bedrooms. The proposed amendments do not increase the bulk or scale of the proposal, other than the additional balconies to units 1, 8, 9 and 10 and there are no adverse amenity impacts on surrounding properties resulting from the increase in FSR.
The experts agree that the additional three units would increase the overall number of bedrooms from 18-21 and there would not be a material increase in intensity of use, particularly as the development does not provide parking and is in close proximity to existing and proposed transport.
Mr Darroch considered that the infilling of the "voids" to units 2, 3 and 4 would provide different amenity to that approved but that it would remain excellent as the units are north facing with large balconies. Similarly the amenity of the proposed units 8, 9 and 10 would be excellent. Although unit 9 is 1sqm below the minimum area required for a studio under the Apartment Design Guide (ADG), it is the same size as other studios approved under the consent. Mr Darroch considered that the development would be consistent with the objectives of the FSR control.
Ms Murphy considered that although a cl 4.6 objection is not required, the s96 applications "should not be used as an avenue to circumvent the application of cl 4.6". In her opinion, the proposal does not demonstrate why compliance with the FSR standard is unreasonable or unnecessary in the circumstances of the case or that a better outcome is achieved. Furthermore, the absence of built form or amenity impacts is not of itself a justification to vary the development standard. In her experience, the FSR standard had been consistently maintained. She accepted that the proposed apartments would provide acceptable amenity and that the objectives of the FSR standard are met by the proposal. Although, she raised concerns about the precedent it may set. She noted that future infrastructure may enable greater densities but only where community infrastructure is provided, similar to the requirements of cl 6.14 of the LEP.
Ms Castellanos and Mr Smith commented on the amenity impact raised in the Contentions in relation to the size of Unit 9. Ms Castellanos considered that the amenity of unit 9 is not diminished by its size as the quality and layout of the space will provide flexibility of use and meet the objectives in the ADG. Mr Smith considered that space, amenity and flexibility of use are crucial to the design of studio apartments and in a small apartment even 1sqm under the required area has the potential to reduce amenity. Findings
Mr Staunton referred to the decision in SDHA Pty Ltd v Waverley Council [2015] NSWLEC 65 to support his submission that cl 4.6 does not apply to the modification applications and that the objectives of the FSR control, are not a mandatory consideration. In SDHA, at [31] to [36], Pepper J found: 31. The first is, as the council correctly submitted in my opinion, that the application before the Commissioner was a modification application pursuant to s 96 of the EPAA, and that, as a matter of law, s 96 constituted a complete source of power to modify a consent, and therefore, cl 4.6 did not apply and was not relevant for the purposes of s 96(3) of that Act. …… 33. Accordingly, there was nothing in the LEP that obliged, in mandatory terms, the taking into account of the objectives of the height or FSR controls because the cl 4.6 objection was otiose. 34. Just as, by analogy, an objection under the State Environmental Planning Policy No 1 does not apply to s 96 applications, neither did cl 4.6 of the LEP and the objection based upon it before the Commissioner (Lido Real Estate Pty Ltd v Woollahra Council (1997) 98 LGERA 1 at 4 per Talbot J, North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 480-481 per Mason P - cited in 1643 Pittwater Road at [52] and Gann v Sutherland Shire Council [2008] NSWLEC 157 at [8]-[18] per Lloyd J). 35. Although both Lido Real Estate and Michael Standley concerned an earlier version of the power to modify development applications as contained in s 102 of the EPAA (the precursor to s 96), given the almost identical language contained in s 102(3A) and (4) to the present text of s 96(3) and (4), the same result must follow. No error, therefore, was committed by the Commissioner in not considering cl 4.6 or the objection based upon it as asserted by SDHA. 36. Second, as the authorities referred to above make plain, SDHA is bound by the manner in which it conducted its case before the Commissioner. SDHA took the position before the Commissioner that the height and FSR controls were of little assistance in evaluating the proposal. I agree with the council that it cannot now run a contrary argument.
Mr Staunton acknowledged and Dr Smith agreed that, while the objectives of the FSR standard are not a mandatory consideration, they may be considered. In the circumstances of a s96 modification, I find that it is appropriate to consider the objectives of the FSR standard, particularly as the applications modify the Consent from one which complied with the FSR standard to one which exceeds this standard. Given that s 96 is a stand-alone power and free from the requirements of cl 4.6 it is more reason to consider whether the proposed modifications would meet the objectives of the standard, and in doing so to consider whether the objectives are met in a similar, better or worse manner to that in the Consent. These are matters which would also be relevant in determining whether the consent as modified would be substantially the same development as the development for which consent was originally granted, although council did not raise this as an issue (see Parker Logan Property Pty Ltd v Council of City of Sydney [2016] NSWLEC 1333).
The objectives of the FSR standard are: 4.4 Floor space ratio (1) The objectives of this clause are as follows: (a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future, (b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic, (c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure, (d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality.
The modifications do not result in a change to the envelope of the building, other than the balconies to units 1, 8, 9 and 10, and there will be no increase in the bulk or scale from the additional GFA. Similarly, while the proposed modifications will increase the number of units and bedrooms by three there will be no material increase in the land use intensity of the development or vehicle and pedestrian traffic generation and it would be commensurate with the capacity of existing or proposed infrastructure. This is unlikely to be the case if the proposal were to have involved the infilling of the pergola on the roof terrace to provide additional habitable floor space. Such an amendment would clearly add to the bulk and intensity of the development beyond what is anticipated by the controls.
The Consent involved a variation to the height control and included voids to units 2, 3 and 4, which would have added to the height. These units provided north facing windows to the two storey living areas. The removal of the "voids" will reduce amenity to these units. Although, this was not raised in the contentions, it was addressed by the planning experts in oral evidence. While I do not accept Mr Darroch's evidence that the amenity will "change but not be reduced", I accept the agreed position of these experts that the amenity of these units and the proposed units 8, 9 and 10 will be acceptable. Each of these units will have large balconies and adjoining living areas that face north and while the amenity will be less than that approved, it would not be unreasonably compromised by the proposed changes to the extent that it would warrant refusal of the s96A Application. Similarly, the infilling of the void to unit 1 to provide an additional bedroom will not compromise the amenity of this unit.
The size of proposed Unit 9 is 1sqm less than the requirement in the ADG. However, this unit is the same size as the other studios in the development, which were found to be acceptable in the Consent and its amenity will not be unreasonably compromised by the shortfall in size, particularly as it, and the other studios, face north and have balconies that exceed the requirements of the ADG.
The additional floor space in the roof space of the existing heritage item does not change the exterior of the building and, as discussed above, would not adversely impact on its heritage significance, particularly when compared to the Consent.

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Parties

Cases Cited (5)

Cited By (1)