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The evidence

1. The hearing commenced with a view of the site and surrounding area. The Court heard from a representative of Christ Church of St Lawrence who reiterated the concerns that had previously been expressed at the conciliation conference, which include that the proposal will adversely impact on the significance of the church. In particular, the height of the tower exceeds the height control and would be out of scale with its surroundings. The view of the church and its spire with the backdrop of Central Station clock tower would be compromised if framed by the proposed building. Similarly, the view of the church spire from Central Railway, which is currently viewed against the sky, would be compromised if viewed against the height of the proposed building. The development would also result in an increase in parking and access problems for users of the Church, particularly if tourist buses were to park outside the church, which already occurs.
2. Statements of Evidence and Joint reports were prepared on the urban design, heritage and planning contentions by Mr R Dickson, Mr R Staas and Mr A Darroch, for the applicant, and Mr A Smith, Mr H Wang and Mr C Ashworth, for the Council. Other than Mr Darroch and Mr Ashworth, the experts were not required for cross examination. Height and clause 4.6
3. The maximum height of the development is 73.05m, which does not comply with the maximum height of 50m under cl 4.3 of the LEP.
4. Mr Darroch prepared a written request required under cl 4.6(3) of the LEP seeking to justify the contravention of the height standard (the Request). The discussion in the Request referred to the Sydney Hotels Supply and Demand Study 2014 (Hotels Study) carried out on behalf of the council, which identified a significant demand for hotels in this area. The Request outlines that the breach in the height control results from the relocation of building mass away from the windows and balconies of Capitol Terrace to …retain outlook, skyline views and solar access and daylight….which would otherwise be obscured by a building that observed the 50m height control whilst achieving the intensity of development that is desirable in this locality.
5. The Request compared the Concept Proposal to two "complying schemes", which would both achieve the "desired intensity of development" ie one that did not exceed the 50m height standard (Scheme 1) and one that involved the demolition of the heritage building (Scheme 2).
6. The Request provides that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) as the Concept Proposal is consistent with the objectives of the B8 Zone and the height standard. Whereas, a "complying scheme" would "thwart" the achievement of these objectives. Similarly, the objectives would be "thwarted" if the development was not able to achieve the desired intensity (FSR) as a result of strict compliance with the height standard. Furthermore, the Concept Proposal would result in a better planning outcome than either "complying scheme" as it provides better residential amenity to the dwellings in Capitol Terrace and the hotel rooms in the proposal, will retain the heritage façade and will not result in any significant environmental impacts.
7. Similarly, the Request states that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)) principally because a better planning outcome would be achieved.
8. The Request states that the objectives of the height standard are achieved as the proposed building: is appropriate to the condition of the site and its context and that it minimises any overshadowing, loss of privacy and visual impacts for the neighbouring properties….The proposal provides an appropriate transition and follows the form and relationship set by the proximate buildings….is consistent with the desired character of the locality and provide an intensity of development that is commensurate with the existing and planned form in the locality
9. The development complies with the objectives of the zone: by providing a compatible land use characteristic of Sydney's global status and that serves the workforce, visitors and wider community and providing active street frontages.
10. Mr Darroch provided further evidence in relation to the objectives of the standard. He noted that a "condition of the site and its context" includes a number of taller buildings and the adjoining building to the north, Capitol Terrace. The additional height is a consequence of the increased setback to Capitol Terrace to maintain its amenity and the height is not dissimilar to other buildings in the area (Objective a). The height control envisages a building of 50m and there is little difference in the "height transition" between the proposal and a complying building with the existing heritage items in a context that is interspersed with taller buildings (Objective b). During the hearing a view analysis was provided by council, which assessed the potential impact on views from 61-79 Quay Street and 107-121 Quay Street. Mr Darroch raised concerns about the view analysis but considered that the proposal does not give rise to any unacceptable view sharing as even if views to the north east are affected by the proposal, wider views to the city are maintained (Objective c). The proposal will maintain the height transition from Central Sydney to the lower scaled adjoining areas (Objective d).
11. Mr Ashworth considered that the Concept Proposal was not consistent with the objectives of the height standard and he did not agree that compliance with the height control would thwart the achievement of these objectives. The height control under the LEP within a 200m radius of the site is 50m or less and the majority of existing buildings are below 50m and the desired future character will maintain this character. He acknowledged that there are 7 building which exceed 50m in this area but these were approved under different controls and, some, by other authorities. He considered that these buildings do not set an appropriate benchmark for the development and they result in similar impacts to those of the proposal. The increased setback of the proposal to the windows and balconies of Capitol Terrace and any amenity benefits do not justify the increased height when balanced against the adverse impacts to the wider area. The proposal can be built to the boundary with Capitol Terrace and it would be unreasonable to constrain development on the site to maintain light and air to windows in that development that are built close to the common boundary (Objectives a). The exceedance in the height control will result in an uncharacteristic height, an overbearing built form and will not provide an appropriate transition to the nine heritage items in the vicinity of the site and the scale of buildings in the Special Character Area (Objective b). A view analysis was not undertaken by the applicant and the one prepared by council demonstrates that the increased height of the proposal would result in a greater impact on views than a complying proposal (Objective c). The site is located in a height transition area between the high rise development in the CBD and Darling Harbour to the north and the lower scale development to the west, south and east. The height of the proposal will be dominant in the locality and not provide an appropriate transition (Objective d). Compliance with the standard is therefore not unreasonable or unnecessary in the circumstances of the case.
12. Mr Ashworth noted that the whole of the City Centre is within the B8 zone and includes a number of different height controls. While the proposal may be consistent with the zone objectives, a development which complied with the height control would also be. Furthermore, he considered that the additional impacts that would result from the exeedance in the height standard demonstrate that the proposal is not a better planning outcome and that there are not sufficient environmental planning grounds to justify contravening the development standard. For these reasons, Mr Ashworth was not satisfied that the Request met the requirements of cl 4.6 of the LEP to vary the height standard.
13. Mr Dickson and Mr Smith agreed on photomontages that they based their assessment of the visual impact of the proposal, particularly its additional height in comparison to a building that would comply with the height control. In Mr Dickson's opinion, there are a mix of building heights within the Special Character Area and the proposed envelope is of a similar scale to buildings on the eastern side of George Street and to the south of Railway Square along Broadway. He considers that the proposal "would assist to frame George Street when viewed from Henry Deane Plaza to the south". When viewed from Valentine Street, Christ Church St Lawrence would be symmetrically framed by the proposed development and the additional height would not be within the cone of vision of normal eye height. When viewed from Foveaux Street, the proposed envelope is unlikely to have a greater impact than a complying envelope and it will not impact views of any heritage item but only sky. Furthermore, the additional height would not result in material impacts, such as overshadowing or view loss when compared to a complying building and would provide amenity benefits to Capitol Terrace. Mr Dickson also considered that the non-complying set-backs would not exacerbate the height and were necessary to provide a usable floor plate for the development.
14. Mr Smith considered that the proposed building height is excessive in the context of buildings within the Special Character Area. He states: When viewed from surrounding areas, and particularly from the south, it will not blend into the distant towers in the central CBD to the north but will appear proximate and larger than its neighbours in the view catchment. The non-complying setbacks will exacerbate the negative impacts of excessive height as they fail to provide appropriate height transitions into the surrounding context of low rise heritage buildings and medium rise commercial and apartment buildings.
15. In Mr Smith's opinion, from Valentine Street, the envelope impinges on the amount of sky visible around the steeple of Christ Church St Lawrence and diminishes its landmark quality. The fixed view in the analysis does not represent the ability of a person to look up and down to and perceive the full height of the proposed envelope. From Foveaux Street there are many locations that the proposed envelope will be clearly seen with Central Station Clock Tower. Mr Smith considered that a complying height would have acceptable amenity impacts on Capitol Terrace and solar access to the public domain, including the footway dining area at 814 George Street.
16. The key disagreement between Mr Staas and Mr Wang was whether the proposed building would have an acceptable effect on the heritage significance of 761-763 George Street.
17. In Mr Wang's opinion, the height of the proposed tower is not compatible or proportional with the existing two storey heritage building and when viewed together the heritage building will be overwhelmed by the new building, He states: the significance of the heritage listed building lies in not just its fabric but its setting, external form and internal space. The air space above the heritage building is important in expressing its external form and setting. If the setbacks required under the DCP is made, the air space above the heritage can be largely maintained and its 3 dimension form can be properly expressed on the streets. ….The new building above the air space of the heritage building is an intrusion to the skyline and setting of the heritage building.
18. Mr Staas did not consider that it was unusual or unacceptable for the tower component of a development in a city context to exceed the height and scale of the retained façade or that it would be overwhelmed by the tower. In close views the tower and the existing building would not be seen together and in distant views the overall building would be seen in the context of other development. He states: The significance of this building relies almost entirely on its remnant external façade fabric….The original setting is already partly compromised by nearby taller development that sits behind the item in many views ….the form created by the proposed setbacks combined with the height of the recess created above the parapet level is adequate to allow an appreciation of the retained façade and its relationship to other heritage elements in the streetscape.
19. Mr Wang and Mr Staas also disagree on the impact that the proposed tower would have on the significance of Christ Church St Lawrence and Central Station Clock Tower. Mr Wang considers that the proposal would have a greater impact than a development which complied with the height and setback controls. It would dominate Valentine Street and reduce the sky around the Church spire and the symmetrical view of the spire and the Clock Tower. It would intrude into the views towards the Church group from Pitt Street and particularly from the western concourse of Central Station, where it will appear in the background of the Church spire. Mr Staas considers that the setback of the tower is sufficient to ensure that the views of the Church spire along Valentine Street will remain intact and that the spire will still be viewed against a sky backdrop. The views from Pitt Street and the western concourse of Central Station are dynamic and the backdrop of the Church spire will remain largely unchanged.
20. The experts also held different opinions about the impact of the proposal on the significance of other heritage items in the vicinity of the site and the Special Character Area. Mr Wang notes that the area is characterised by an absence of tower forms and the proposal would be highly visible and not compatible with the lower scale, fine grained buildings. Whereas, Mr Staas considers there are a number of prominent towers in the Area, which is one of mixed character and the proposal will not detract from this character.