Construction Development Management Services Pty Ltd v City of Sydney

Land and Environment Court (NSW)|2023-10-03

Judgment

COMMISSIONER: A residential flat building with basement level car parking is proposed on a site at the intersection of Erskine Street and Kent Street in central Sydney.
The proposal comprises: 1. Seven levels of basement to accommodate parking for eight cars, a service vehicle, motorcycle and bicycle parking, residential storage, waste, fire services, switch room and other services, served by a car lift. 2. Ground floor entry, communal room and fire control room. 3. Eight residential apartments, the majority of which are multi-level.
To this end, development application D/2022/643 (the original DA) was lodged on 28 June 2022 by the Applicant in these proceedings, Construction Development Management Services Pty Ltd.
The original DA was notified between 30 June 2022-22 July 2022, in response to which one submission was received.
The original DA was also referred to external agencies including Ausgrid, Water NSW and Transport for NSW.
As the original DA was otherwise undetermined at that time, the Applicant filed an appeal in Class 1 of the Court's jurisdiction, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) on 22 November 2022.
The Applicant amended the Original DA by Notice of Motion on 28 July 2023 (Amended DA). As a result of the amendments, the parties agree that a number of the contentions that were originally pressed in this matter have been resolved.
The remaining contentions may be summarised as follows: 1. Apartments do not receive adequate sunlight. 2. The ground floor frontage does not activate the street. 3. As a consequence of (1) and (2), the site is unsuitable for the development proposed, and does not exhibit design excellence.

Apartments do not receive adequate sunlight.

The Respondent contends that the proposal is inconsistent with the design quality principles in respect of context, sustainability or amenity because the apartments fail to receive the sunlight required by the design criteria at Part 4A of the Apartment Design Guide (ADG), which limits the amenity afforded to future residents.
Objective 4A-1 of the ADG provides: "To optimise the number of apartments receiving sunlight to habitable rooms, primary windows and private open space"
The design criteria at Part 4A is threefold: "1. Living rooms and private open spaces of at least 70% of apartments in a building receive a minimum of 2 hours direct sunlight between 9 am and 3 pm at mid winter in the Sydney Metropolitan Area and in the Newcastle and Wollongong local government areas 2. In all other areas, living rooms and private open spaces of at least 70% of apartments in a building receive a minimum of 3 hours direct sunlight between 9 am and 3 pm at mid winter 3. A maximum of 15% of apartments in a building receive no direct sunlight between 9 am and 3 pm at mid winter"
The design guidance provided at Part 4A is as follows: "Design guidance The design maximises north aspect and the number of single aspect south facing apartments is minimised Single aspect, single storey apartments should have a northerly or easterly aspect Living areas are best located to the north and service areas to the south and west of apartments To optimise the direct sunlight to habitable rooms and balconies a number of the following design features are used: • dual aspect apartments • shallow apartment layouts • two storey and mezzanine level apartments • bay windows To maximise the benefit to residents of direct sunlight within living rooms and private open spaces, a minimum of 1m2 of direct sunlight, measured at 1m above floor level, is achieved for at least 15 minutes Achieving the design criteria may not be possible on some sites. This includes: • where greater residential amenity can be achieved along a busy road or rail line by orientating the living rooms away from the noise source • on south facing sloping sites • where significant views are oriented away from the desired aspect for direct sunlight Design drawings need to demonstrate how site constraints and orientation preclude meeting the design criteria and how the development meets the objective"

Expert evidence

While the Amended DA is supported by a number of solar analyses, the duration of solar access provided to apartments in the proposed development is perhaps best described in the town planning and urban design joint expert report (Exhibit 4) that was prepared by experts identified below:

Mr Giovanni Cirillo, town planning expert, and Mr Rohan Dickson, urban design and architecture expert, on behalf of the Applicant
Ms Erin Faulkner and Mr Tim Wise, town planning experts, Ms Cindy Ch'ng, urban design expert, on behalf of the Respondent.

Figure 1, re-produced below, was prepared on behalf of the Applicant to show sunlight received by apartments in the development in the context of the surrounding built form that exists today, and at 5 minute increments between 10.15am and 12.30pm on 21 June.
According to Figure 1, sunlight received by the apartments may be summarised as follows, with separate figures for Living area and Private Open Space (POS): Apartment 1 Living: 1 hour 20 mins POS: 40 mins Apartment 2 Living: 1 hour 20 mins POS: 40 mins Apartment 3 Living: 1 hour 25 mins POS: 45 mins Apartment 4 Living: 1 hour 25 mins POS: 50 mins Apartment 5 Living: 1 hour 35 mins POS: 1 hour Apartment 6 Living: 1 hour 55 mins POS: 1 hour 15 mins Apartment 7 Living: 1 hour 55 mins POS: 1 hour 20 mins Apartment 8 Living: 1 hour 55 mins POS: 2 hours 5 mins

The figures summarised above are also then aggregated by the Applicant so that the earliest receipt of sunlight, whether to Living area or POS, and latest departure of sunlight, from either living area or POS, is consolidated into a total aggregated duration.
Ms Faulkner considers Figure 1 to be misguided because it aggregates the cumulative duration of sunlight generated by misreading design criteria 1 which conjoins Living areas and POS, and does not disaggregate those spaces. Two hours of sunlight is required to Living areas and POS.
In considering the assessment of solar access undertaken by both parties, it is relevant to state at the outset that the experts identify a discrepancy in the precise north point employed by the Respondent and the Applicant in the preparation of sun eye diagrams. However, Mr Dickson and Ms Ch'ng agree the effect is negligible.
The Respondent contends that future redevelopment of land within the Tower Cluster Area, identified at [15], may further reduce the duration of sunlight received by two apartments at the lower levels of the proposed development.
A block massing model is contained at Annexure FF of the joint report, re-produced in Figure 2 below (at 11.35am), that the Respondent submits shows the likely redevelopment envelope for the site to the north of the subject site.
The massing envelope is said by Ms Ch'ng to conform to the relevant setback and street frontage heights in Table 5.1 and Table 5.2, including accounting for the heritage provisions that would suggest the height of the terrace row fronting Erskine Street remain at the height it is today. Furthermore, a setback of 8m is assumed to the south of the tower site to account for the local heritage items in the terrace row.
The effect of such future redevelopment is agreed to reduce the sunlight to the lower two apartments by removing sunlight received by the POS of Units 1 and 2. A summary of sunlight received by the development in the event of such redevelopment at Annexure GG of the joint report, prepared by the Respondent, and described by the Applicant as the 'worst case scenario' records the remaining sunlight to be 1 hour to living areas, and zero to POS.
Section 5.1.2 of the Sydney Development Control Plan (SDCP) requires the redevelopment of surrounding sites to be assumed when calculating solar access in residential accommodation, as is the case here.
When considering the impact of such future redevelopment, Section 5.1.2(6) states that any adverse impacts on existing private views, visual privacy, solar and daylight access may be considered reasonable where compliance with Sections 5.1.1 and 5.1.2(1), (2) and (3) is demonstrated.
Subsections (1), (2) and (3) are in the following terms: (1) Outlook from windows, balconies must have a minimum clear Outlook Field that: (a) has a depth set out in Table 5.5 Minimum Outlook Field depths (b) is completely contained within the sites boundaries and/or adjacent Public Place(s); and (c) is completely clear of built obstructions, excluding public domain structures and trees in a Public Place. (2) An Outlook Field is defined by extending a visual field horizontally for the width and height of the window or balcony and perpendicular to it, with additional sector shaped fields extending from the edges of the window/ balcony that have a combined angular extent of at least: (a) 30 degrees, where the fields extend unobstructed to a Public Place, or; (b) 90 degrees. (3) For the purposes of defining an Outlook Field, windows or balconies within 1m of each other will be treated as one continuous window or balcony.
The effect of Section 5.1.2(5) is that the development the subject of the development application must assume that future redevelopment on sites such as the KENS site take full advantage of the envelope controls applicable to the site.
According to Mr Wise, as the operation of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) permits certain forms of residential accommodation, future redevelopment of the KENS site may include a component of residential accommodation. Assuming that to be the case, Mr Wise notes the operation of (7) once again invokes the provisions of the ADG in respect of overshadowing and visual privacy.
The dispute as to solar access may be summarised in competing positions summarised as follows: 1. The Respondent and its experts assert the development achieves 0% compliance with the solar access required by Objective 4A-1 of the ADG (the 0% argument). 2. The Applicant and its experts assert the development provides sunlight to 100% of the apartments (the 100% argument)

The 0% argument

Ms Ch'ng's position is informed by an understanding of how the provision of the ADG are to be used, as set out on p 11 of the ADG (Exhibit 2, Tab 4): "Achieving the objectives Parts 3 and 4 of the Apartment Design Guide provide objectives, design criteria and design guidance for the siting, design and amenity of apartment development. Each topic area is structured to provide the user with: 1. a description of the topic and an explanation of its role and importance 2. objectives that describe the desired design outcomes 3. design criteria that provide the measurable requirements for how an objective can be achieved. 4. design guidance that provides advice on how the objectives and design criteria can be achieved through appropriate design responses, or in cases where design criteria cannot be met."
In Ms Ch'ng's opinion, the Objective at 4A-1 is achieved by complying with the design criteria that requires 70% of apartments to receive 2 hours of sunlight between the hours of 9am and 3pm in mid winter.
Not only does the proposal fail to achieve the design criteria, but also fails to demonstrate how site constraints and orientation preclude meeting the design criteria, which is a requirement of the design guidance.
The Applicant can only achieve the sunlight it relies on by aggregating the cumulative sunlight received by Living spaces and POS summarised at [25].
However, more properly understood, the proposal provides 0% compliance with the objective at 4A-1.

The 100% argument

The Applicant's position is that the objective at 4A-1 seeks sunlight to habitable rooms, primary windows and private open space.
Habitable rooms are defined in the Glossary of the ADG as: "a room used for normal domestic activities, and includes a bedroom, living room, lounge room, music room, television room, kitchen, dining room, sewing room, study, playroom, family room and sunroom; but excludes a bathroom, laundry, water closet, pantry, walk-in wardrobe, corridor, hallway, lobby, photographic darkroom, clothes-drying room, and other spaces of a specialised nature occupied neither frequently nor for extended periods, as defined by the BCA"
Primary windows is also defined in the Glossary as follows: windows to habitable rooms located on the external wall of a buildings; primary windows may be supplemented by windows in courtyards, skylights, notches and along galleries
Finally, Private Open Space is likewise defined: outdoor space located at ground level or on a structure that is within private ownership and provided for the recreational use of residents of the associated apartment
The Applicant identifies that the design criteria permit 15% of apartments to receive no sunlight whatsoever, and for another 15% of apartments to receive less than 2 hours of sunlight, resulting in the figure of 70% of apartments to receive 2 hours of sunlight in design criteria 1.
However, by proposing dual aspect, multi-level apartments, 100% of the apartments receive sunlight to those areas identified in the objective as deserving of sunlight. This exceeds the design criteria in two respects; 1. Firstly, sunlight is received to every apartment. No apartment is deprived of sunlight, as would be acceptable according to the design criteria. 2. Secondly, sunlight is received in rooms beyond the living rooms and private open space identified in the design criteria, to include rooms such as bedrooms, consistent with the more expansive reference to spaces found in the objective.

The development optimises the number of apartments receiving sunlight

The Respondent relies on three authorities for the proposition that inadequate solar access, when the provisions of the ADG are properly understood, have been held by the Court to be grounds for refusal.
However, having carefully considered the circumstances of each appeal, it would appear the following distinctions can be drawn from the circumstances of this appeal: 1. In Landmark Group Australia Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1338 (Landmark), the Respondent's expert calculated that around 20% of apartments received no sunlight, and may not receive the minimum of 1m2 of direct sunlight, measured at 1m above the floor for at least 15 minutes. It was found each of these deficits could be remedied by design changes, and the development was capable of full compliance with the design criteria at Part 4A of the ADG. This is distinct from the circumstances of this appeal in three respects; 1. Firstly, there are no apartments that fail to receive sunlight. All apartments receive sunlight. 2. Secondly, Annexure J of the joint report demonstrates that all apartments receive a minimum of 1m2 of direct sunlight, measured at 1m above the floor for at least 15 minutes. 3. Thirdly, in this case it is commonly held that failure to comply with the design criteria is not a function of design choices made, but of constraints inherent to the site. Put another way, in Landmark, the development was capable of achieving full compliance, but the Applicant chose not to, whereas this development cannot achieve compliance despite attempts to do so. 1. In Huajun Investments Pty Ltd v City of Canada Bay Council (no 3) (2019) 240 LGERA 230; [2019] NSWLEC 42 (Huajun), the Applicant's expert sought to extend the timeframe in which solar access is permitted as a means to achieve compliance and proposed design changes that the Applicant declined to adopt. Neither of these circumstances align to those in this case. However, it is relevant to record two observations made in Huajun by His Honour as to the weight to be given to ADG provisions: 1. At [289], his honour observes "…it is to be observed that this proposal compliance level is not a development standard, and therefore is not to be regarded as immutable." 2. At [297], his honour reiterates: "…the Apartment Design Guide guidelines do not have the status of development standards and strict compliance is not, in any fashion, mandated." 1. Finally, in Modog Pty Limited v North Sydney Council [2018] NSWLEC 120 (Modog), his honour observed that the solar access provided in the circumstances of that case was "a sliver of floor space from, at best, a little above knee-height downward' (at [167]), which was described, with some emphasis, as an unsatisfactory amount of solar access (at [168]), that was, once again, "capable of rectification in a differently designed development proposal" (at [170]).
A common thread in all the authorities is the Court's focus on the qualitative aspects of solar access.
Having considered the qualitative aspects of solar access of the proposed development, I accept the Applicant's 100% argument. I do so for the following reasons: 1. While 70% of apartments do not receive the sunlight required by design criteria 1, the criteria is not, of itself, a development standard but one means of achieving the objective at 4A-1 of the ADG. 2. The objective seeks sunlight to be optimised to habitable rooms, primary windows and POS. While I accept Ms Faulkner's position that it is the number of apartments receiving such sunlight that should be optimised, I find the Applicant's architect has optimised the direct sunlight to habitable rooms in each apartment by deploying three out of four non-exhaustive design features found in the design guidance, including dual aspect apartments, shallow apartment layouts and multi level apartments that ensures the receipt of sunlight to more than the living areas and POS. Sunlight has been optimised to both the number of apartments, and to areas within each apartment. 3. To the extent that design criteria 1 has not been achieved, it is not a consequence of poor design choices, capable of rectification as in Landmark or Modog. Instead, the site, on which residential development is encouraged by those incentives at [75], is within a highly developed area of the Sydney CBD in which surrounding development overshadows a site on which residential development is permitted. It is this urban form that demands of the architect a higher degree of skill than might otherwise be the case in order to optimise sunlight to apartments that are overshadowed by commercial buildings to the east, north east and north of the site. 4. The skill then lies firstly in the apartment layout, which arranges habitable rooms such as living and dining rooms, to the north and east of each floorplate, while also arranging bedrooms and ensuites to the same north and east orientations on the floor above (other than for the single level apartment on level 13 that deploys a variation on this approach). Stairs, lifts and service areas are arranged to the south and south west of the floorplate. I respectfully disagree with Ms Ch'ng's opinion at par 93 of the joint expert report that the apartment layout contributes to a 'poor result'. 5. Secondly, the skill also lies in the design of openings to the perimeter of apartments that are not only dual aspect, but are also characterised by large areas of glazing, considered further at [64]-[65], to admit daylight as well as sunlight.
Where an application relates to residential apartment development, s 29 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) requires that the application be accompanied by a statement by a qualified designer, defined at s 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of s 29(2) of the EPA Regulation, which include attestations similar in nature to the requirements of cl 28(2)(b) and (c) of the State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development (SEPP 65).
I am satisfied that the 'SEPP 65 Design Verification Statement' prepared by the architect Mr Angelo Candalepas (Arch Reg No 5773) dated 19 July 2023 (Exhibit C, Tab 33) addresses at length the design quality principles at Schedule 1 of SEPP 65, and explains how the development addresses the objectives of Parts 3 and 4 of the ADG.
The design quality principles said by the Respondent to be offended by the inadequate sunlight to apartments are, relevantly: Principle 1: Context and neighbourhood character Good design responds and contributes to its context. Context is the key natural and built features of an area, their relationship and the character they create when combined. It also includes social, economic, health and environmental conditions. Responding to context involves identifying the desirable elements of an area's existing or future character. Well designed buildings respond to and enhance the qualities and identity of the area including the adjacent sites, streetscape and neighbourhood. Consideration of local context is important for all sites, including sites in established areas, those undergoing change or identified for change. … Principle 4: Sustainability Good design combines positive environmental, social and economic outcomes. Good sustainable design includes use of natural cross ventilation and sunlight for the amenity and liveability of residents and passive thermal design for ventilation, heating and cooling reducing reliance on technology and operation costs. Other elements include recycling and reuse of materials and waste, use of sustainable materials and deep soil zones for groundwater recharge and vegetation. … Principle 6: Amenity Good design positively influences internal and external amenity for residents and neighbours. Achieving good amenity contributes to positive living environments and resident well being. Good amenity combines appropriate room dimensions and shapes, access to sunlight, natural ventilation, outlook, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas and ease of access for all age groups and degrees of mobility.
Clause 28 of SEPP 65 requires the consent authority, or the Court on appeal, to consider the design quality principles in the following ways: … (2) In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration) - (a) the advice (if any) obtained from the design review panel, and (b) the design quality of the development when evaluated in accordance with the design quality principles, and (c) the Apartment Design Guide. …
Clause 30 of SEPP 65 also requires the design quality principles and the objectives of the ADG, to be considered prior to the grant of consent, as follows: … (2) Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to - (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria. …
I note here that it is the objectives of Parts 3 and 4 of the ADG that are the focus of s 29(2)(b)(ii) of the EPA Regulation, and not the design criteria or the design guidance.
However, it is the ADG that must be taken into consideration by the Court according to cl 28(2)(c) of SEPP 65.
Clause 28(2)(a) requires the Court to consider the advice of a design review panel. The Design Advisory Panel (DAP) (Exhibit 2, folios 167A and 167B) is not a design review panel constituted by the Minister and so the advice provided by it does not have the weight it would if it were otherwise. That said, the written advice of the DAP is responsive to the original DA, and not the proposal now before the Court.
Clause 30(2) of SEPP 65 requires the consent authority, or the Court on appeal, to be satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles, and the objectives specified in the ADG for the relevant design criteria. On the basis of the architect's statement demonstrating how the objectives of Parts 3 and 4 of the ADG have been achieved, I am satisfied that adequate regard has been given to the ADG.
I am also assisted by the design statement in understanding how the Applicant's architect has optimised the number of apartments receiving sunlight to habitable rooms, primary windows and private open space. The following statement is made in respect of Principle No 6: Amenity (p 12), supported by a 3D visualisation in support of the statement: "The typical two-storey apartments have a floor area of 302sqm and comprise of 170sqm of façade area. This façade area equates to 56% of the floor area of the typical apartment, or a ratio of floor area to façade area of 1.77:1…The area of access to daylight in each unit is therefore significant and unusually high when compared to the expected outcomes which can be as low as 28% access to daylight when considering the ratios in the above figure."
In respect of Objective 4A-1: Solar and Daylighting Access, the statement states relevantly: "The concept of optimisation of sunlight has been achieved noting that the subject site is overwhelmed by shadow…I have given myself the challenge of maximising sunlight to units (and this is a threshold more onerous than an optimisation threshold). In doing so I have considered sizes of units, mix of units, orientation and façade areas which admit light in winter. I have been unable to increase the amenity of units in my examination beyond what is presented here for consideration." (pp 25-27)
It is also relevant, in my mind, that the size of glazed openings within the façade area to which the architect refers is also depicted on architectural drawing DA-1860. From levels 2-14, four openings present to the north. Three of these openings are fully glazed, with opening type 'TY01', that is dimensioned to be 3,360mm wide x 2,600mm high. The fourth opening is either the same or, where denoted as a winter garden on alternate levels, matches that opening size but with a glazed panel dimensioned on DA-1860 to be 3,360mm wide x 1,950mm high, with fixed opening over.
All of these openings are generous, and extend horizontally between primary structural columns, and vertically from floor to ceiling, while being protected from unreasonable sun exposure in both the horizontal and vertical plane. The daylight admitted by such openings is, in my view, consistent with the architect's statement as to steps taken in response to Principle 4: Sustainability including: "Excellent passive solar gain properties achieved by light-coloured façade materials deep-set within the façade to protect the glazing from high-angle summer sun. Orientation of all apartment living rooms to both the East and North, and façade articulation to minimize unwanted western sun access. Cross ventilation to habitable rooms (exceeding ADG requirements). Façade design to maximize daylight penetration, reducing heating and artificial lighting requirements. A composition of deep horizontal granite clad slab ledges and vertical rounded paired column elements to the northern façade to reduce unwanted solar gains in summer and increase control of the internal environment."
By the measure described above, I can only conclude that the development optimises the number of apartments receiving sunlight to habitable rooms, primary windows and POS, consistent with objective 4A-1 of the AGD, and complemented by levels of daylight admitted by the generous size of openings presenting to the north.

The ground floor frontage does not activate the street.

The ground floor communal room is located to the north of the site, fronting Erskine Street. While Erskine Street falls to the west, the communal room does not fall or step with the fall of the street, but instead remains at a level that is essentially set by the Kent Street entry lobby.
This results in a level difference of 1.19m at the eastern corner of the site, and around 2.77m at the western boundary, according to measurements taken by Ms Faulkner. This arrangement is depicted on the north elevation, re-produced below:
It is because of this difference in level that the Respondent contends the ground floor has not been designed to maximise visibility of the internal uses of the development, and as it is not at the level of the footpath on Erskine Street, it does not provide activation to the street frontage.
Put another way, the public domain interface as proposed deprives opportunities for activation and engagement between the site and the public domain.
Section 3.2.2 of the SDCP deals with Addressing the street and public domain in the following terms: "A person's experience of the city will be formed by the public domain as well as private developments which adjoin the public domain. It is important that development adjacent to the public domain be attractive, comfortable, safe, functional and accessible for all. The public domain and pedestrian environment should be characterised by excellence in design, high quality materials and well integrated public art. Objectives (a) Ensure that development contributes to the activity, safety, amenity and quality of streets and the public domain. (b) Present appropriate frontages to adjacent streets and public domain in terms of scale, finishes and architectural character. (c) Provide legible and accessible entries from the street and the public domain. (d) Reinforce street edge conditions that significantly contribute to the characteristics of a heritage conservation area. (e) Reinforce Central Sydney's strong definition of streets and the public domain aligned with property boundaries. (f) Ensure that in areas outside of Central Sydney new development relates to neighbouring buildings that define the street and public domain. (g) Minimise and ameliorate the effect of blank walls (with no windows or entrances) at the ground level. Provisions (1) Buildings are to be designed to positively address the street. (2) Buildings are to be designed to maximise the number of entries, visible internal uses at ground level, and include high quality finishes and public art to enhance the public domain. (3) Development that exposes the blank side of an adjoining building or has a party wall to the public domain is to be designed with a visually interesting treatment of high quality design applied to that wall. (4) Ground floor tenancies and building entry lobbies on sites not flood affected are to: (a) have entries at the same level as the adjacent footpath or public domain; (b) have finished floor levels between 0-1.0m above or below the adjacent footpath or public domain entry; (c) provide opportunities for direct surveillance of the adjacent street or public domain at maximum intervals of 6m; and (d) be elevated up to 1.0m above ground level for privacy for ground floor residential uses. (5) Car parking areas at ground level are to be screened by active uses to a minimum depth of 6m from the facade visible to the street or public domain. (6) Basement parking areas and structures: (a) in Central Sydney, must not protrude above the level of the adjacent street or public domain; (b) in other areas, must not protrude more than 1.0m above the level of the adjacent street or public domain. Where they are visible, basement structures and vent grills are to be integrated into the building and landscape design. Ventilation grills are to block views into basement areas and, in appropriate locations, be screened by landscaping in garden beds with a minimum soil plan depth of 1m. (7) Residential developments: (a) are to have a street address and provide a direct line of sight from a street to the principal common building entry or entries. Where a development comprises a number of buildings with a variety of orientations, a major part of the overall development is to face the street; (b) are to be designed and laid out so that every 6m a dwelling, communal space or other high use space provides opportunities for direct surveillance of the adjacent street or public domain; and (c) are to provide individual entries directly from the street to any ground floor dwellings next to the street. …"
Section 3.2.3 of the SDCP deals with active frontages, with objectives as follows: "(a) Ensure ground floor frontages are pedestrian oriented and of high design quality to add vitality to streets. (b) Provide fine grain tenancy frontages at ground level to street frontages. (c) Provide continuity of ground floor shops along streets and lanes within Central Sydney and other identified locations. (d) Allow for active frontages in other non-identified locations to contribute to the amenity of the streetscape. (e) Encourage frequent building entries that face and open towards the street."
The provisions at Section 3.2.3 are in the following terms: "(1) Active frontages are to be provided in the locations nominated on the Active frontages map. (2) Active frontages are to contribute to the liveliness and vitality of streets by: (a) maximising entries and display windows to shops and/or food and drink premises or other uses, customer service areas and activities which provide pedestrian interest and interaction. Generally, active frontages on the ground floor of a property boundary are to be provided in accordance with Table 3.1 Ground floor active frontages; (b) minimising blank walls (with no windows or doors), fire escapes, service doors, plant and equipment hatches; (c) providing elements of visual interest, such as display cases, or creative use of materials where fire escapes, service doors and equipment hatches cannot be avoided. (d) in Central Sydney, providing three floors of retail (basement, ground and first floor) in the blocks bounded by George, Market, King and Castlereagh Streets as shown in Figure 3.7 Central Sydney retail core. Where this is not practicable, the design of new buildings should enable the conversion of these floors to retail at a later stage; and (e) providing a high standard of finish and appropriate level of architectural detail for shopfronts. (3) Generally, a minimum of 70% of the ground floor frontage is to be transparent glazing with a predominantly unobstructed view from the adjacent footpath to at least a depth of 6m within the building. (4) Generally, foyer spaces are not to occupy more than 20% of a street frontage of a building in Central Sydney and no more than 8m of a street frontage elsewhere. (5) Active frontages are to be designed with the ground floor level at the same level as the footpath. (6) Driveways and service entries are not permitted on active frontages, unless there is no alternative. (7) Enclosed glazed shopfronts are preferred to open shopfronts, except for food and drink premises which are encouraged to provide open shopfronts. (8) Security grilles may only be fitted internally behind the shopfront and are to be fully retractable and at least 50% transparent when closed. (9) Through-site links or arcades are to have a clear width of 3-6m and a minimum clear height of 1.5 times the width or 6m, whichever is greater."
Table 3.1 of the SDCP provides further guidance on the treatment of active frontages. As the site is identified on the Active Frontages Map as 'Category 2', the relevant guidance is summarised as follows: 1. Minimum active frontage proportion at each public domain frontage is 5m or 70% of the public domain frontage (whichever is the greater). 2. Uses on public domain frontage should include entries or display windows to shops and/or food and drink premises or other uses, customer service areas and activities which provide pedestrian interest and interaction. 3. Minimum preferred 'grain' of tenancies is 10-14 separate tenancy entries per 100m. 4. Preferred maximum average ground floor tenancy width is 10m. 5. Awnings are to be fixed or retractable. 6. No requirement for a through-site link.
Table 3.2 of the SDCP is said to provide a general guide to designing the ground floor of a building, in addition to those numerous objectives and controls already set out. As the preamble to Table 3.2 states, the City's preferred design of ground floors for all uses are Grade A - Active and Grade B - Friendly. Those Grades are described in the following terms: "Table 3.2: Ground floor design Grade A - Active Small units, many doors (15 - 20 doors per 100 m) Large variation in function No blank walls and few passive units Lots of character in facade relief Primarily vertical facade articulation Good details and material Grade B - Friendly Relatively small units (10 - 14 doors per 100 m) Some variation in function Few blind and passive units Facade relief Many varied details"
The Applicant submits that the proposed development is not only permissible in the SP5 zone, but was, at the time the Original DA was lodged, a use to which incentives applied in the form of additional floor space at cl 6.4 of the SLEP, with the express purpose of encouraging residential development in the centre of the city.
No amount or number of objectives and provisions at Section 3.2.3 that promote purely retail uses by seeking 'fine grain tenancies', 'ground floor shops' and the like can supplant the permissibility of residential development that contributes to diversity in the range of activities otherwise dominated by retail shops at street level, that is, afterall, the opening statement in the chapeau to Section 3.2.3.
Mr Cirillo cites a prior approval of a hotel use on the site that proposed a length of around 12m of 'blank' wall deemed acceptable by the Respondent at the time due to a substation and other functions, compared to a lesser length of 9m in the current proposal (Exhibit 4, Tab C).
In this proposal, Ms Ch'ng acknowledges the pedestrian entry on Kent Street is the preferred location, and waste collection from Kent Street is deemed by Ms Faulkner as 'the only option', requiring access to waste storage to this elevation, which the Applicant asserts ultimately determines the level of the communal room over.
Mr Dickson acknowledges that the level difference diminishes the activation for a section of the south side of Erskine Street, but regards activation as something delivered to the whole street, including across the street. In particular, the sightline from the north east corner of the intersection permits an at-grade sightline deep in to the ground floor spaces that would be lit at night, providing activation, light spill and interest.
A retractable screen is in annotated plans to the northern openings on the architectural plans that Mr Cirillo understands to be reference to a sheer curtain to provide a moderate level of privacy for residents and their guests for whom the space is intended.
According to the Respondent, such a curtain would serve to preclude the visual interaction envisaged by the provisions at Sections 3.2.2 and 3.2.3 and so fail to achieve the design quality principle at Sch 1 of SEPP 65 in respect of Safety.
Design quality Principle 7: Safety is in the following terms: Principle 7: Safety Good design optimises safety and security within the development and the public domain. It provides for quality public and private spaces that are clearly defined and fit for the intended purpose. Opportunities to maximise passive surveillance of public and communal areas promote safety. A positive relationship between public and private spaces is achieved through clearly defined secure access points and well lit and visible areas that are easily maintained and appropriate to the location and purpose.
I do not understand the Respondent to express any concern with the ground floor treatment to the Kent Street frontage which comprises the building entry, access to services and a combination of solid and glazed elements.
Ms Faulkner observes in the joint report, at par 146, the Kent Street façade aligns with the level of Kent Street.
The ground floor façade fronting Erskine Street, as described at [64], is essentially divided into four large bays, three of which are fully glazed. The most western bay is solid, as it encloses the fire stairs. It is at this point the level difference reaches 2.77m, according to the survey accompanying the Class 1 application (Exhibit B, Tab 8).
According to the levels shown on the survey, and those in the architectural plans at DA 1002, the difference in level between the Community Room and the Erskine Street footpath at the western edge of the Community Room is around 2.45m.
When the frontage of Kent Street, the chamfered corner, and the façade to Erskine Street are considered, and the frontages at [9] are taken into consideration, a total frontage of around 20m affords a view from the footpath into the ground floor of the proposed development.
While the Erskine Street frontage does not fall or step with the fall of the street, the frontage is broken up into the bays described at [86]. I accept the Applicant's submission that this rhythm is consistent with the rhythm of shop frontages to the west of the site, while providing for a permissible use, and accommodating the pragmatic necessities of services required by development of this sort, or indeed of commercial or retail development for which such access is likely to be required in any event.
By virtue of the extent of glazing presenting to Erskine Street, I accept Mr Dickson's evidence that the proposal affords a deep and transparent sightline into the Community Room from a wide arc at the intersection of Erskine Street and Kent Street. I also consider the surveillance of the public domain that is made possible by the extent of glazing and shallow dimensions in the Community Room to be virtually continuous along the Erskine Street frontage, exceeding the 6m intervals preferred by Section 3.2.2(4)(c) of the SDCP. It is also not irrelevant that Section 3.2.2(4)(d) actively seeks a level difference of 1m between the public domain and ground floor residential uses.
To the extent that the Community Room rises above the 1m level difference, it is not due to basement car parking, but of waste storage that also serves to screen car parking services such as the car lift, consistent with Section 3.2.2(5) of the SDCP, in a manner that the Respondent's expert concedes is "the only option".
Clearly, the proposal does not provide a ground floor level that is at the same level as the footpath to Erskine Street. To strictly comply with such a requirement would result in a nonsensical slope rendering a space unusable, and the fall of Erskine Street exceeds that of any ramp gradient considered reasonable for accessible use, posing a genuine challenge for the development of the site in strict compliance with those terms at Section 3.2.3 of the SDCP.
Of those elements desired in the introductory description to Section 3.2.3 of the SDCP for a well designed street frontage, the proposal includes, in my assessment, well detailed architecture, facade modulation, clear glazed windows, and recessed visually permeable security screens in the form of sheer curtains.
As for Table 3.2 of the SDCP, it is difficult to see how such general classifications, which themselves appear to carry fixed assumptions on ground floor uses, supported by terms of such generality as 'Good details' and 'Few blind and passive units', that are not otherwise defined, may be usefully applied to assessment of this or any other development.
This is especially so where the topography to the west of the Sydney CBD ridgeline falls steeply and poses a genuine challenge to achieving universal access and shared 'back of house' services that would be reasonably assumed of any development, and more so if many small tenancies are assumed with separate access at such differing levels.
Finally, it remains an open question as to whether such fixed assumptions on the uses inherent in Table 3.2, attributed to Danish urbanist Jan Gehl, are compatible with the stated ambition for diversity in the range of activities to be provided at street level to reinforce the vitality and liveliness of the public domain, as appears the thrust of the introductory description to Section 3.2.3.

Design excellence

As stated at [8], the question of design excellence essentially descends from the contentions pressed by the Respondent as to sunlight and public domain interface. That said, Ms Ch'ng believes failure on those points also results in failure of the proposal to demonstrate that a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, or that the suitability of the land for development, and the proposed uses and use mix are appropriate.
Likewise, as it is put by Ms Faulkner in par 161 of the joint report, the poor amenity and passive frontage is not suitable for this site and so the development does not demonstrate suitability of the land for development, which is an element to which design excellence provisions in the SLEP are directed.
Design excellence is dealt with under cll 6.21, 6.21A, 6.21B, 6.21C, 6.21D and 6.21E of the SLEP.
Clause 6.21 of the SLEP is in the following terms: The objective of this Division is to deliver the highest standard of architectural, urban and landscape design.
Clause 6.21C precludes the grant of consent unless the proposed development exhibits design excellence in terms sets out as follows: 6.21C Design excellence (1) Development consent must not be granted to development to which this Division applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence. (2) In considering whether development to which this Division applies exhibits design excellence, the consent authority must have regard to the following matters - (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, (c) whether the proposed development detrimentally impacts on view corridors, (d) how the 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 interfaces at ground level between the building and the public domain, (xiii) excellence and integration of landscape design.
I have considered the particular questions posed at cl 6.21C(2), and have formed an opinion that the proposed development exhibits design excellence for reasons I will now summarise: 1. Firstly I consider the description of the façade, its materials and detailing contained in the design statement in answer to Objective 4M of the ADG (p 36) consistent with a high standard of architectural design, materials and detailing that is, in my opinion, appropriate to a residential flat building in a highly urbanised CBD location (cl 6.21C(2)(a)). The description is as follows: "The eastern façade to Kent Street has been designed as a solid sandstone and granite clad façade with vertical openings to the entry lobby areas and a larger picture window to the living area on the corner with Erskine Street. The northern façade opens through a series of horizontal expressed granite clad slabs and vertical circular paired granite columns, with floor to ceiling glazing setback behind the paired columns." 1. Secondly, given the high standard of materials proposed, the large areas of glazing to the ground floor, and the large fixed corner 'picture window' at the chamfered corner of Kent Street and Erskine Street, and my findings at [89]-[96], I am of the opinion that the form and external appearance of the proposal will improve the quality and amenity of, and so have a positive impact on, the public domain (subcll 6.21C(2)(b) and (2)(d)(x)), with an appropriate interface at ground level (cl 6.21C(2)(d)(xii)), notwithstanding the level difference considered above. 2. Thirdly, I am assisted by the numerous 3-dimensional analyses completed on behalf of both the Applicant and Respondent, and compliance with the height standard in concluding the proposal does not detrimentally impact view corridors (cl 6.21C(2)(c)). 3. Having regard to the permissibility of residential development on the site to which certain incentives are directed, and my findings at [66], and those at [89]-[96], it follows that my opinion is the land is suited to the development proposed (cl 6.21C(2)(d)(i)) with an acceptable mix of uses proposed on the site (cl 6.21C(2)(d)(ii)). 4. To the extent that streetscape issues arise in this proposal, I regard my findings at [89]-[96] dispositive of those issues. In respect of heritage issues, I note the site is not identified as having heritage significance, and is not located within a heritage conservation area. However, the development is proposed in the vicinity of a number of heritage items contained in Sch 5 of the SLEP. Consistent with cl 5.10(5)(c) of the SLEP, a Heritage Impact Statement, prepared by Urbis, dated 5 July 2023 (Tab 17) has been prepared, which concludes that no adverse impacts on heritage items at 42-50 Erskine Street, 62-66A Erskine Street or 66-80 Erskine Street, a state heritage item, arise from the proposal. Furthermore, a Historical Archaeological Impact Assessment also accompanies the Amended DA, by the same author and date (Archaeological Assessment) (Tab 18), in which the likelihood of disturbing archaeological artefacts is considered to range from nil to high within a timespan from the early colonial era to the mid-20th century. Condition 19 of the agreed conditions incorporates recommendations contained on p 59 of the Archaeological Assessment, including provision for an excavation permit under s 140 of the Heritage Act 1977. I am of the opinion that heritage issues are satisfactorily addressed (cl 6.21C(2)(d)(iii)). 5. The location of the proposed development is depicted on the architectural plans and numerous 3-dimensional analyses in context with existing and proposed tower forms, including most relevantly, Figures 4-9 of the design statement. When separation, setback, amenity and urban form are considered, I am of the opinion that the proposal has an appropriate relationship with both existing and potential future development (cl 6.21C(2)(d)(iv)). Inherent in this relationship is the bulk, massing and modulation of the proposal (cl 6.21C(2)(d)(v)), and street frontage heights (cl 6.21C(2)(d)(vi)) that are explained at length, supported by visual images and diagrams on p 9 of the design statement. 6. On the basis of my findings at [66], the detailed architectural drawings that document the proposed means of naturally ventilating apartments, the agreement of the natural ventilation and acoustic experts in Exhibit 3 as to appropriate conditions of consent, incorporated in the agreed conditions at Condition 49, and the conclusions of the letter prepared by Windtech dated 10 July 2023 (Exhibit C, Tab 16), I am of the opinion that the environmental impacts set out in cl 6.21C(2)(d)(vii) are satisfactorily addressed, as are, relatedly, the principles of ecologically sustainable development (cl 6.21C(2)(d)(viii)). 7. The Right of Way cited at [13] provides access for service and resident vehicles within a compact basement layout that is serviced by both a car lift, and turntable. Parking for bicycles and motorcycles is denoted on plans, which I regard to be a well-integrated approach to managing access and circulation on a site of this size (cl 6.21C(2)(d)(ix)). 8. The development will not impact a special character area (cl 6.21C(2)(d)(xi), and demonstrates appropriate degree of excellence in the integration of landscape design at levels 14 and 16 (cl 6.21C(2)(d)(xiii)).

Sydney Local Environmental Plan 2012

While the applicable height standard at cl 4.3(2) of the SLEP is 110m, the proposal is 55m in height given the effect of cl 6.16(4) of the SLEP which applies certain constraints to the height of buildings on sites less than 1000m2, as is the case here.
The floor space ratio (FSR) applicable to the site at cl 4.4(2) of the SLEP is 8:1. However, as the site is also identified within 'Area 3', the provisions at 6.4 of the SLEP provide additional floor space of 3:1. The FSR of the proposed development is expressed as 9.96:1.
On the basis of the Stormwater and desktop Flood Risk Assessment Report dated 23 June 2022 (Exhibit B, Tab 31), and the Memorandum dated 6 July 2023 (Exhibit C, Tab 19), that are both authored by ARUP, I note the explanation contained in the Memorandum as to overland flow and flood behaviour, inclusive of climate change, that is lower at the Probable Maximum Flood level than the site boundary, and so outside the flood plain for the purpose of flood planning requirements at cl 5.21 of the SLEP.
Clause 7.13 of the SLEP provides for contributions for the purpose of affordable housing that is contained in Condition 3 of the agreed conditions of consent.
The site is identified within Class 5 Acid Sulfate Soils on the relevant map at cl 7.14(2) of the SLEP, and is also within 500m of Class 1 soils. The Acid Sulfate Soils Assessment undertaken by EI Australia (Exhibit B, Tab 11) concludes there is no known occurrence of acid sulfate soils in the area, the site is underlain by geology not associated with such, and is absent of indicators of the same. Furthermore, groundwater is unlikely to be lowered by the proposed excavation due to the low hydraulic conductivity of Hawkesbury sandstone.

State Environmental Planning Policy (Resilience and Hazards) 2021

Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 requires a consent authority to consider whether the land is contaminated and requires remediation.
The Original DA was accompanied by a Preliminary Site Investigation prepared by EI Australia dated 14 June 2022 that concluded there was potential for contamination, and recommended further investigation.
The Amended DA comprises the following, prepared by EI Australia (Exhibit C): 1. Additional Site Investigation dated 6 July 2023 (Tab 23) 2. Remediation Action Plan dated 6 July 2023 3. Hazardous Materials Survey dated 12 April 2023
The Amended DA is also supported by Interim Advice No.4 - Updated Endorsement of Remediation Plan, 41-45 Erskine Street Sydney (299 Kent Street, Sydney), NSW 2000 prepared Geosyntec consultants dated 10 July 2023.
The recommendations contained in the above documents are reflected in the without prejudice conditions of consent agreed between the parties (Exhibit D).
Accordingly, I conclude that the site is capable of being remediated and made suitable, after remediation, for the purpose for which the development is proposed to be carried out.

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

The application is accompanied by a BASIX certificate (Cert No. 1312382M_02, dated 5 July 2023) prepared by E-LAB Consulting in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP 2004) and the EPA Regulation.
While not assisted by submissions on the subject, the Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023 is anticipated on the website for NSW Legislation, legislation.nsw.gov.au.
Section 4.1 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) provides for the commencement on 1 October 2023, however the savings and transitional provisions at s 4.2(1)(a) save the Amended DA from the provisions of Sustainable Buildings SEPP.

Conclusion

The Respondent invites the Court to consider the amenity of apartments by having regard to the definition of amenity found in the glossary of the ADG, that is as follows: "Amenity the 'liveability', comfort or quality of a place which makes it pleasant and agreeable to be in for individuals and the community. Amenity is important in the public, communal and private domains and includes the enjoyment of sunlight, views, privacy and quiet. It also includes protection from pollution and odours"
For reasons I have set out in this decision I consider the amenity of the apartments to be without fault and deserving of the grant of consent pursuant to s 4.16 of the EPA Act, subject to the agreed without prejudice conditions of consent (Exhibit D).

Orders

The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to development application D/2022/643 for the demolition of all existing site structures and the construction of a residential apartment building with basement levels, including basement parking, a ground floor common room and residential apartments on Lot 1 in DP 75062 known as 41-45 Erskine Street Sydney, subject to conditions of consent at Annexure A. 3. All exhibits are returned except for Exhibits A, B, C.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 October 2023

(2019) 240 LGERA 230

At a glance

Court

Decision date

Source

Judgment (16 paragraphs)

Parties

Cases Cited (4)