Ceerose Pty Ltd v Council of the City of Sydney

Statutory framework

The site is within the B8 Metropolitan zone under the LEP and the development is permissible with consent. The objectives of the zone are: • To recognise and provide for the pre-eminent role of business, office, retail, entertainment and tourist premises in Australia's participation in the global economy. • To provide opportunities for an intensity of land uses commensurate with Sydney's global status. • To permit a diversity of compatible land uses characteristic of Sydney's global status and that serve the workforce, visitors and wider community. • To encourage the use of alternatives to private motor vehicles, such as public transport, walking or cycling. • To promote uses with active street frontages on main streets and on streets in which buildings are used primarily (at street level) for the purposes of retail premises.
Clause 7.20 of the LEP applies to the development as it is for the purpose of a new building with a height over 55m. Clause 7.20(2) provides that consent must not be granted unless a development control plan has been prepared that provides for the matters in cl 7.20(4), which include: (a) requirements as to the form and external appearance of proposed development so as to improve the quality and amenity of the public domain, (b) requirements to minimise the detrimental impact of proposed development on view corridors, (c) how proposed development addresses the following matters: (i) the suitability of the land for development, (ii) the existing and proposed uses and use mix, (iii) any heritage issues and streetscape constraints, (iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) the bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network, (x) the impact on, and any proposed improvements to, the public domain, (xi) the impact on any special character area, (xii) achieving appropriate interface at ground level between the building and the public domain, (xiii) the excellence and integration of landscape design, (xiv) the incorporation of high quality public art into the fabric of buildings in the public domain or in other areas to which the public has access.
Section 83C of the EPA Act provides that if an environmental planning instrument requires the preparation of a development control plan before development is carried out, that obligation may be satisfied by the making and approval of a staged development application. The Concept Proposal is a staged development application for a building envelope and concept use. The detailed design of the proposal would be considered under any further application, which would include a consideration of design excellence requirements under cl 6.21 of the LEP.
Under cl 4.3 and the Height Map of the LEP, the maximum height of a building is 50m. Under cl 4.4 and the Floor Space Ratio (FSR) Map, the maximum FSR is 7.5:1 with an additional 1.5:1 under cl 6.4 for hotel accommodation. The Concept Proposal provides a FSR of 9:1 and a height of 73.05m. It exceeds the height standard and the applicant has submitted a written request to vary the height standard under cl 4.6 of the LEP, which provides: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (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 Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence.
The key dispute between the parties is whether the requirements of cl 4.6 to vary the height standard are satisfied, which is discussed later in this judgement.
757-759 George Street is identified in Schedule 5 of the LEP as a heritage item (I843). The site is within the vicinity of a number of heritage items including Christ Church St Lawrence group, Central Railway Station Group, a group of commercial buildings at 767-791 George Street, the former Orchard House at 793-795 George Street and the former Lottery Office at 814 George Street.
Sydney Development Control Plan 2012 (DCP) is relevant. Section 2 of the DCP includes Locality Statements. The site is in the Central Sydney Locality and within the Haymarket/Chinatown Special Character Area. The character statement and supporting principles in s 2.1.3 relevantly include: …….As an area somewhat removed from the City Centre, it retains fine grained subdivision patterns, narrow frontages, informal public spaces and generally low building heights. The consistent low street wall, and the absence of the tower form, creates a pleasant microclimate at street level, which is well sunlit and protected from winds. …….. Principles (a) Development must achieve and satisfy the outcomes expressed in the character statement and supporting principles. (b) Retain and enhance the urban character and scale of the Haymarket locality by requiring new buildings to: i. be built to the street alignment; ii. have street frontage heights consistent with the prevailing form of heritage items in this Special Character Area; and iii. have building setbacks above those street frontage heights. (c) Maintain a high level of daylight access to the street by restricting building height and bulk. ……. (h) New development is to maintain and enhance vistas east along Valentine Street to Christ Church St. Lawrence at 814A George Street, Haymarket. (i) Maintain and enhance the existing vista to the Anglican Christ Church of St Laurence along Valentine Street. ……
The parties referred to the Central Sydney Planning Strategy and Planning Proposal to Amend the LEP and DCP. While these documents may be relevant considerations under s79C(1)(e), they have not been publically exhibited and consequently should be given little weight (see Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472). Even if these documents were to be given weight, the 50m height limit is retained and it is proposed that the height of a heritage item in the Special Character Area would be that of the existing building.

At a glance

Court

Decision date

Before

Source

Judgment (4 paragraphs)

Parties

Cases Cited (2)