City West Housing Pty Ltd V Sydney City Council [1999] NSWLEC 246

City West Housing Pty Ltd V Sydney City Council [1999] NSWLEC 246 - NSWLEC 1999 case summary — Zoe

[9]

The documentary evidence discloses that in refusing the development application, the Central Sydney Planning Committee passed the following Resolution - (A) having regard to the proposed development exceeding the maximum building height of 21m and the maximum floor space ratio limit of 3:1 and the extent of the non-compliance, proposed, the SCPC refuse to support the objection made under SEPP1 regarding non-compliance with the maximum building height and maximum floor space limit controls as both standards are considered reasonable and necessary in this instance; and (B) consent be refused for the following reasons: (1) proposed development does not comply with urban design planning principles for the Ultimo-Pyrmont Precinct in clause 15 of SREP 26 in that the height and scale of the new building fails to respect the existing buildings in the locality, particularly the heritage item; (2) the proposed development does not comply with the Residential-Business zone requirements …in that amenity of the development is likely to be adversely affected by excessive odour from the nearby Sydney Fishmarkets (3) the proposed development does not comply with the maximum building height control in …REP 26 (4) the proposed development does not comply with clause 26 of REP 26 in that it fails to provide an appropriate transition in scale with the heritage listed Sydney Water Pumping Station (5) the proposed development does not comply with the floor space limit of …REP 26 (6) the proposed development does not maintain an acceptable heritage curtilage and setting for the heritage listed SWPS (7) the proposal does not comply with the built form, character and detail, sustainable residential development, and access, parking and circulation provisions of the Urban Development Plan for Ultimo-Pyrmont … (8) the proposed development has not obtained adequate legal rights over the adjoining land to permanently secure borrowed light and ventilation from the curtilage of the SWPS (9) the proposed development does not comply with the provisions of Council's Code for Waste Handling in Buildings (10) any development on the site should not be considered in the absence of a Master Plan or Urban Development Plan being prepared, exhibited and adopted by the DUAP for the block bounded by Wattle Street, Wattle Crescent and Pyrmont Bridge Road. (11) the applicant has not demonstrated that the requirements of the Roads and Traffic Authority have been satisfied; and (12) the proposal is not in the interest of the public.

[98]

The proposed Floor Space Ratio (FSR) of the development is 4:1 which was prepared in accordance with the SREP at the time which imposed no FSR limit on residential development. The revised SREP applies an FSR of 3:1. It is understood that the introduction of an FSR to residential development came about predominantly as a result of the following concerns: · The practice by previous development to treat building envelope and height controls as the only framework for determining gross floor area without references to urban design, amenity and streetscape objectives. · The practice of maximising development yield within the building envelope establishing a built form distinguished by excessive bulk, continuous and oppressive walls and facades and no attention to articulation scale, character and richness to the detriment of the broader urban design objectives for the Ultimo-Pyrmont Precinct. Therefore in preparing this SEPP 1 Objection City West Housing is cogniscent of the concerns that resulted in the introduction of the FSR and has endeavoured to propose a development concept that accommodates these concerns. City West Housing's grounds for objection to the application of the provision are as follows: · The proposed development complies in all respects with the guiding principles contained within the revised UDP. Specifically: - the scale of the proposed development ensures that the public domain, particularly Wentworth Park and surrounding streets is not significantly overshadowed as demonstrated in the shadow diagrams contained within this document. - the building form is modulated within the building envelope to enhance streetscape context, promote visual character and richness and reduce building bulk and visual uniformity. - building bulk, coupled with height and setbacks ensures that all principles with regard to privacy, environment and amenity are met, particularly though the provision of the courtyard. - additional height is provided at the street corner to define the street block generating a visual landmark and clues within the urban environment, assisting legibility as well as streetscape character. - the heritage significance of the adjoining pumping station is not compromised by the proposed development. - views and vistas are identified and maintained where reasonably possible. This is discussed in detail in Section 4.5 below. Vistas through the site are provided and framed by the built form proposed. - the facade of the development is rich in treatment and modelling, particularly in comparison to other contemporary residential developments. - roof design is attractive and enhances, rather than erodes, the skyline. · Therefore the proposed development meets the urban design principles of the UDP, particularly with regard to the articulation, bulk, scale, open space, modulation of roof form and breaking down of building mass. · In other words the proposed development does not attempt to maximise the building envelope, negating the concerns generated by other developments, and consequently negating the need for, and deeming as unnecessary, the imposition of an FSR control in this particular development. · Furthermore the achievement of the urban design principles contained within the UDP is reinforced through the preparation of a block study, for the surrounding development sites. The block study demonstrates that protection not only of the amenity of existing surrounding development but also future development of the north of the proposed development is achievable. The block study is presented in Section 4.5. 4.4.3 BUILDING HEIGHT The proposed building height is 21.6 metres which exceeds the revised SREP height limit of 21.0 metres by a mere 0.6 metres (60 centimetres). To achieve this height and to maintain the number of affordable housing units with the development the ceiling height has been proposed to be 2.4 metres which falls short of the requirement of 2.7 metres. It is understood that the revised building height controls within the Updated SREP were introduced to protect the quality of the public domain. This change came about as a response to the concerns being generated by development at the time as described in Section 4.4.2 above. City West Housing's grounds for objection to the application of these provisions are as follows: · The proposed development height of 21.6 metres to the ceiling of the top floor is not consistent throughout the whole development and is proposed to be located only on the corner of Wattle Street and Wattle Crescent. This reflects City West Housing Pty Ltd's commitment to satisfy the Update changes wherever possible. Thus the exposure of the part of the development above 21.0 metres to surrounding development (of a greater height) is minimal. · The Shadow diagram demonstrates that there is no unreasonable impact on adjoining uses and development. In mid winter the effect of shadows cast by the building are clear of Wentworth Park and all neighbours after 12pm which is, we believe, a totally acceptable situation in the context of the winter season. In fact the adjoining high rise development incurs significantly greater shadow impacts on the proposed development than the other way round. · City West Housing Pty Ltd is cogniscent of the intent behind the imposition of the new height control on development and has endeavoured to design the development to achieve the objectives within the intent. In this regard the design has been undertaken such that the bulk, mass and scale of the development complies in all respects, except height, with the SREP and UDP, resulting in minimal environmental impacts. Height is exceeded only in the corner of the development to the rear, and also achieves urban design objectives with regard to corner articulation. · The portion of the development over 21.0 metres has negligible impact on view corridors out of the adjoining development. Similarly the orientation of the building ensuites that the view corridor and aspects are essentially unimpeded. Further more the Block Study for the remainder of the triangle reinforces the protection of view corridors and aspects above the proposed 21.0 metre height regulation. · Overall the proposed development is consistent with UDP urban design principles to articulate, facades establish a distinctive building corner, step building heights and modulate built form in accordance with the principles outlined in S.4.4.2 above. The outcome is considered to be a good urban design solution for the site. · The proposed development does not attempt to maximise the building height for the site, negating the concerns generated in other developments, and correspondingly negating the concerns for, and deeming as unnecessary, the imposition of a height limit of 21.0 metres in this particular development. · Again reference to the Block Study in Section 4.5 demonstrates the protection of the amenity of not only surrounding development but future development also.

[195]

Generally speaking, I consider Mr Perkins' evidence to be a more moderate version of the Applicant's written submission to the Council (Exhibit 2 ) which, in addition to containing the Applicant's SEPP No 1 objection that I have earlier recited and discussed, contains in section 4.6 a separate submission under the heading "Achievement of Affordable Housing, Social and ESD Objectives". That submission includes the following content: · City West Housing (CWH) Pty Ltd is committed to providing affordable housing and its feasibility investigation for the site over the last 2 years confirmed that affordable housing could be achieved on the site under the statutory planning controls (SREP and UDP) at the time. City West Housing Pty Ltd has been undertaking planning on this site for a considerable time and the new control of 3:0:1 places a significant financial constraint on the development on the land and would prohibit the achievement of affordable housing. · An FSR of 3.0:1 is both unfair and unrealistic in comparison with other residential development constructed in the vicinity. CWH is finding it increasingly difficult to meet the charter (and statutory role) of providing affordable housing in the Ultimo - Pyrmont Precinct to meet social and community objectives contained in the urban renewal initiative within the area. · The majority of CWH tenants have long standing connections with the Ultimo-Pyrmont areas. If it were not for the availability of affordable housing, many of these households would be forced to move to the fringes of Sydney due to increasing inner city rents. Furthermore, CWH has a waiting list of an additional 500 households currently living in unsuitable accommodation (i.e. overcrowding, cost of rent etc) causing significant housing stress). · Due to increased cost of development land any reduction in the number of units in the proposed scheme will threaten the feasibility of the whole proposal. This will impact greatly on CWH's ability to meet the current high demand and the future demand. · Since City West Housing's first affordable housing project in 1995 land costs have risen by 384%. This is partly as a result of a general upturn in global land values in Sydney, but also, and more significantly, due to the success of the Ultimo Pyrmont urban renewal initiative to attract private investment. (Refer to Fig 1). · The new FSR significantly reduces the potential development yield, and correspondingly increases unit cost, which would result in the project not proceeding. An increasingly scarce opportunity to provide affordable housing for the community would be lost. Diminishing land availability and increasing land costs provide few, if any, alternative locations. · The proposed development yield is therefore vital and essential for City West Housing to meet its charter and contribute to the population diversity of Ultimo/Pyrmont. Most importantly however the FSR is required to meet the affordable housing objectives contained within the SREP, which cannot be achieved with the application of an FSR of 3:1.

[234]

These factors may be elaborated as follows: (i.) the Applicant's planning of the proposed development (including economic feasibility analysis and entering into the conditional contract for the purchase of the Wreck Air site) commenced and was developed at a time when the REP contained no floor space ratio control for residential development, and imposed a higher maximum height control (28 m) for the development site than that now imposed (21 m); (ii.) at the time the Applicant lodged its original development application in October 1998, it was aware of the publicly exhibited proposed changes to the REP, but advanced its argument as to why the proposal should be approved notwithstanding the proposed changes to the REP; (iii.) by the time the 1999 Amendment to the REP came into force, the Council had already determined the Applicant's development application by refusing consent and the Applicant had already filed its appeal to this Court against the Council's determination; (iv.) not only was the 1999 Amendment untimely in its impact upon the Applicant's development application but it significantly affected the economic feasibility or viability of the Applicant's affordable housing proposal and necessitated the re-submission of the proposal to the Council, supported by the objection under SEPP No 1; (v.) by all accounts, the Applicant's proposal is to be regarded as a desirable planning outcome because, it provides the opportunity for the Applicant to make a significant contribution to the stock of affordable housing, provided in fulfilment of the specific objectives of the REP for such development to occur in Ultimo/Pyrmont Precinct to the social and economic advantage of eligible prospective tenants of the affordable housing program established under the REP; and (vi.) the probable result in the present case of enforcing compliance with the relevant controls (especially the floor space ratio control) would be that the Applicant would not, for economic reasons, proceed with its project, to the detriment of the REP's specific objectives for the provision of affordable housing and to the detriment of the needs of prospective tenants of affordable housing.

At a glance

Court

Decision date

Before

Source

Judgment (310 paragraphs)

Cases Cited (9)

Cited By (1)