Cranswick-Smith v Council of the City of Sydney

Land and Environment Court (NSW)|2020-02-06

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. D/2018/335 for alterations and additions to an existing mixed-use building to include a trafficable roof terrace and roof garden on the rooftop of the fifth floor of the building to be used as additional private open space for the Penthouse apartment, unit 400 (the proposal), at 65 Cowper Wharf Roadway, Woolloomooloo (the site) by the Council of the City of Sydney (the Council).
The appeal was subject to conciliation on 21 June 2019, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

Issues

The Council's contentions can be summarised as:

The proposal does not comply with the 15m height of buildings development standard pursuant to cl 4.3 of LEP 2012 for the site as the proposal results in a maximum height of 17.4m and the proposal will have a detrimental impact on view corridors.
The written request to contravene the height of buildings development standard does not adequately demonstrate that compliance with the height of buildings development standard is unreasonable or unnecessary in the circumstances of the case, nor that there are sufficient environmental planning grounds to justify contravening the height of buildings development standard. The proposal is inconsistent with the objectives for the height of buildings development standard.
The proposal will unreasonably impact on the views and outlook from surrounding properties and does not result in adequate view sharing.
The proposal does not exhibit design excellence.

Submissions

The applicant submitted that the view loss from surrounding apartments is minor or non-existent and does not warrant the refusal of the application and the Council's 'Green Roofs and Walls Policy' (Ex 3, Annexure 4) should be given significant weight.
The Council submitted that the contentions raised relate to the extensive balustrading proposed and the use of the area as a private outdoor terrace and the greening of the roof area is not an issue.
The Council submitted that the conditions proposed by the applicant to restrict the frequency and hours of use of the terrace and the maximum number of people permitted on the terrace (conditions 2A Restriction on Use of Green Roof at (a), (b) and (c) of Ex G) should be deleted because the Council would not seek to control the use of a private outdoor terrace; and that the word "permanent" in (e) should be deleted and this condition should include planter boxes, plants and privacy screens as devices or structures that are not be erected on the green roof.

The site and its context

The site is on the southern side of Cowpers Wharf Roadway, bounded by Dowling Street to the west and McElhone Street to the east.
The site is on the eastern side of the natural amphitheatre of Woolloomooloo and overlooks Woolloomooloo Bay and the Finger Wharf to the north. Dowling Street and McElhone Street gradually rise to the south. Surrounding development is a mix of residential and commercial uses.
The site is legally described as Lot 2 in DP 1206839 and Lots 1-16 on Strata Plan 91242. The site has an area of 493.5sqm and a primary frontage of approximately 29m to Cowper Wharf Roadway and secondary frontages of 9.5m to Dowling Street and 29m to McElhone Street. The site contains a five storey mixed use building, with ground floor commercial tenancies and residential apartments on the upper four levels. The roof area is 278sqm.
The proposal relates to the penthouse apartment, which occupies the whole of the fifth floor of the existing building. The apartment has a large, partly covered, outdoor terrace located on the north-eastern corner and along the eastern side of the fifth level.
The existing roof is a concrete slab which steps up towards the centre of the roof from RL17.94 to RL18.31 (Ex A DA-051 and Ex C 01/L600). There is an existing lift overrun on the southern side of the roof at RL18.56 (Ex C L300). Existing Ground Floor is variously noted on the survey as FL2.01, FL 2.52, FL 2.56 (Ex H).

Background and the proposal

A by-law of Strata Plan 91242 (Ex K) permits the Penthouse Lot owner (Lot 16) exclusive use and special privilege over common property, including to develop the part of the common property the subject of the by-law in any manner and for any use including, without limitation, as a rooftop garden.
The proposal includes 30sqm of decking and installation of a green roof located on the roof level of the existing building, comprising planting, decking, solar panels, frameless glass balustrades, an aluminium staircase and path for access to the decking from the eastern terrace of unit 400 and relocation of rooftop plant and utilities.
The proposed green roof and decking are at RL18.56 (Ex C L300). The plants are anticipated to grow to a maximum height of 350mm (Ex C L500 and Ex D p 13) which is RL18.91.
The glass balustrading runs around the perimeter of the roof level which is at a lower level than the central portion of the roof, at a finished level of RL17.94 (Ex C 01/L600). The top of the glass balustrade is RL19.01 and, due to existing rooftop plant located along the southern side of the lower level roof and which cannot be relocated, RL19.61, confined to a portion of the southern elevation.

Planning framework

The site is zoned B4 Mixed Use pursuant to LEP 2012 and the proposal is permissible with consent. The objectives of the B4 zone, to which regard must be had, are:

To provide a mixture of compatible land uses.
To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.
To ensure uses support the viability of centres.

The height of buildings development standard for the site is 15m pursuant to cl 4.3(2) of LEP 2012 and the Height of Buildings Map - Sheet HOB_021 and the relevant objectives of the height of buildings development standard at cl 4.3(1) are: (a) to ensure the height of development is appropriate to the condition of the site and its context (c) to promote the sharing of views
Clause 4.6 of LEP 2012 is in the Standard Instrument compulsory terms and permits development consent to be granted for development even though the development would contravene a development standard.
The site is located within the Woolloomooloo Heritage Conservation Area C71 (Schedule 5, Part 2 of LEP 2012 and Heritage Map - Sheet HER_021) and is identified as a 'Neutral' building by the Building contributions map Sheet 21 of Sydney Development Control Plan 2012 (DCP 2012). The Council submitted that no contention is raised in relation to the proposal's effect on the heritage significance of the Woolloomooloo HCA.
The design excellence clause at cl 6.21 of LEP 2012 applies to the proposal and has the objective of delivering the highest standard of architectural, urban and landscape design. In considering whether development to which cl 6.21 applies, the consent authority must have regard to whether the proposal exhibits a high standard of architectural design, materials and detailing appropriate to the building type and location, at cl 6.21(4)(a), and whether the proposed development detrimentally impacts on view corridors, at cl 6.21(4)(c).
The Locality Statement for Woolloomooloo is at Section 2.4.3 of DCP 2012 and development must achieve and satisfy the outcomes expressed in the character statement and supporting principles.

Public submissions

Two resident objectors gave evidence at the commencement of the hearing and the Court and the parties viewed the site from an apartment to the east of the site at 49/67 Cowpers Wharf Roadway, from the communal open space at 67 Cowpers Wharf Roadway and from two apartments to the south-east of the site, 21 and 26/26 McElhone Street. The objector at 49/67 Cowpers Wharf Roadway is concerned that the proposal will partially obstruct his view east towards the city, including the view of St Mary's Cathedral and its spires against the backdrop of the sky. The objectors at 26/26 McElhone Street are concerned that the proposal will obstruct their views of the harbour, the lanterns and roof of the Finger Wharf and part of the view of the Opera House and Harbour Bridge. The objector at 26/26 McElhone Street noted that the proposal is higher than the maximum building height of 15m for the site and that the proposal benefits a single dwelling, whereas it impacts on the existing views of a number of dwellings.

Expert evidence

The applicant relied on the expert evidence of Michael Harrison (urban design and planning) and the Council relied on the expert evidence of Dr Richard Lamb (visual analysis) and Mia Music (planning).

Contravention of the height of buildings development standard

According to the agreement of the planning experts, the proposal has a maximum height of 17.04m to the top of the high level balustrade. The height of buildings development standard for the site is 15m.
In order to calculate the height of buildings development standard, existing ground level was taken as RL2.57. This value for ground level was adopted from a previous modification application for the height of the lift overrun, where RL18.56 was taken to be 0.94m above the 15m height of buildings development standard (Ex 3 p 7, point 9 and p 9, point 15iv).
Although I accept the agreement of the experts for the purpose of this assessment that the maximum height of the proposal, at RL19.61, exceeds the height of buildings development standard by a numerical value of 2.04m; I note that there is some ambiguity about the determination of existing ground level for this application because the survey included in the experts' joint report (Ex 3) does not conform to the requirements for survey plans at Schedule A of the Court's Practice note for Class 1 Development Appeals.
The 15m height of buildings development standard is depicted on the section looking north taken between Dowling and McElhone Streets (Ex A DA-015) as a line drawn 15m above the footpaths through which the section is taken and this is a line that therefore falls to the west. Taking the existing ground level on this site from the levels of the footpath immediately adjacent to the site is a practical way to determine the 15m height of buildings development standard when it is impossible to determine existing ground level below the proposed highest point on the site, but there are no reduced levels for the footpaths because the survey information is inadequate. A survey (Ex H) shows the FFL to the south of the site as 2.52 and to the north of the site as 2.02 and excludes RLs for the footpath. Another survey (Ex 3 Annexure 9) shows the footpath level at the south-western corner of the site as 1.79.
The top of the southern balustrade at RL19.61 (not depicted in the section because the section looks north) is greater than 2.04m above the line indicated on the section as the 15m height of buildings development standard.
The applicant provided a written request seeking to justify the contravention of the height of buildings development standard, prepared by Michael Harrison of Architectus and dated 1 October 2019 (Ex D).
Clause 4.6(4) of LEP 2012 establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 [13] ("Initial Action"). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows: (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.
On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2012 (Initial Action [29]).

The applicant's written request to contravene the height of buildings development standard

The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action [15]), as follows: (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.
The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action [25]). The consent authority has to be satisfied that the applicant's written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).
The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 [42]-[51] ("Wehbe") and repeated in Initial Action [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action [16]):

the objectives of the development standard are achieved notwithstanding non-compliance with the standard;
the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;
the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;
the development standard has been abandoned by the council; and
the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]). The applicant submitted that the written request seeks to justify that compliance with the height of buildings development standard is unnecessary in all the circumstances of this application because the relevant objectives of the height of buildings development standard are achieved by the proposal.
The applicant's written request justifies the contravention of the height of buildings development standard on the bases that compliance is unnecessary for the following reasons:

The main elements of the proposal, being the lower level balustrade and green roof, result in lesser building heights that the maximum building height of 17.04m to the high-level balustrade. No gross floor area or solid, opaque building elements are proposed above existing levels. The proposal will have a negligible impact on the visual bulk and scale of the existing building and the landscaping and finishes palette is considered to be appropriate to the conditions of the site.
The existing building does not comply with the current height of buildings development standard and Council has approved breaches of the height limit for this building up to 15.94m, so Council has already elasticised the development standard and made a determination that there was no such public benefit in maintaining the development standard.
The highest elements of the proposal are the balustrades. To minimise their height as much as possible, the balustrades have been located on the lower roof level and represent the minimum height for code compliant balustrades. The clear glass balustrades will not be visible at street level.
The proposed building height of 17.04m is appropriate in this context, noting the surrounding pattern of taller buildings which exceed the building height development standard of 15m. This proposal will enable a better urban design outcome where the environmental planning benefits will significantly outweigh the minor variation in height.
67 Cowpers Wharf Roadway benefits from a roof terrace and pool above 15m height limit.
The proposal creates a green roof with 30.2% (97sqm) of green roof coverage excluding potted plants, in response to planning guidelines that promote the use of green roofs and green walls, including the City of Sydney Green Roofs and Walls Policy 2014, schedule 9 of DCP 2012, which aims to increase the number of green roofs across the local government area. The proposed green roof is consistent with the Woolloomooloo locality and built form character.
The proposal promotes view sharing by siting various elements to avoid view loss, using transparent glass for the balustrade and selecting landscaping with a maximum height of 350mm.

The Council agreed with the applicant that the proposal is consistent with the B4 zone objectives. The Council submitted that the proposal is inconsistent with the height of buildings development standard objectives (a) and (c).
The grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action [24]). Therefore the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action [24]).
The applicant's written request to justify the contravene the height of buildings development standard cites the following environmental planning grounds:

Visual amenity, as the proposal creates a more pleasant view from neighbouring buildings and reduces glare when compared to the existing stark white rooftop;
The proposal reduces the urban heat island effect through the provision of 30% of extensive landscaping and planting. The proposal will promote urban biodiversity and provide habitat for native flora and fauna;
The proposal reduces energy costs through passive heating and cooling as the proposal will reduce reliance on grid energy through the provision of 15 solar panels;
The proposal will improve air quality in the locality and increase the absorption of carbon dioxide;
The proposal will reduce the impact of noise to unit 400;
The proposal will prolong the life of the roof of the existing building;
The proposal increases the area of usable open space with green amenity.

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action [26]).

The proposal does not promote the sharing of views

I do not accept the applicant's position that the frameless glass balustrade is transparent and so it will permit views across the roof garden and terrace, through the balustrade. The proposed green roof and decking are at RL18.56 and the plants are anticipated to grow to a maximum height of 350mm. This means that there is an obstruction to views across the roof, for the majority of the area of the roof, at RL18.91. The lower balustrade is fixed to the lower plane of the roof, close to the edge of the roof, and the top of the balustrade is at RL19.01, so only 100mm of the top of the lower balustrade projects above the height of the plants. The structure depicted in Section A (Ex C 01/L600) at a higher level in the central portion of the roof, along with any furniture to a height of RL19.01 permitted by the agreed condition (2) in the conditions of consent (Ex G) and the plants, will certainly obstruct views across the roof, even with frameless glass balustrades, and this is what is depicted on Sections A and B (Ex C).
For this reason, I accept Dr Lamb's evidence that the balustrades, along with the structures and landscaping, will "block" views across the roof obtained from dwellings to the south and east of the site. I accept Dr Lamb's evidence that glass both reflects and refracts light and as a result it does not appear either uniformly clear or what is seen through it uniformly undistorted and that this, along with any dirt on the glass, will interfere with the view across the roof through the higher level balustrading on the southern edge of the roof. Glass balustrades are not invisible.
The lift overrun is a discrete element in the overall area of the roof and its height above the 15m height of buildings development standard does not necessarily justify any horizontal extension of that reduced level, or an increase in the level, across the majority of the area of the roof. The granting of consent to a modification application approving the height of the lift overrun would not have required a written request from the applicant to vary the height of buildings development standard. The granting of consent to an exceedance of a development standard does not justify future applications seeking to exceed that development standard.
The experts addressed the Council's contention regarding view loss with reference to the Court's planning principle in Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 ("Tenacity") [25]-[29]. I accept Dr Lamb's evidence that the extent of impact on views demonstrated by the photo montages (Ex B) would be moderate. From the site view and all the evidence before me, I find that the impact of the proposal on 49/67 Cowpers Wharf Road is at least moderate (within the meaning of Tenacity [28]) as the proposal will obstruct an important horizontal slice of the western view towards the city, including St Mary's Cathedral and spires; and the impact of the proposal on 26/26 McElhone Street is also moderate, as the proposal will obstruct the lanterns on the roof of the Finger Wharf and part of the Opera House and Harbour Bridge.
The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment (Tenacity [25]). The impact of the proposal on views from surrounding dwellings arises as a result of a significant numerical breach of the height of buildings development standard. Furthermore, unit 400 already has a generously proportioned terrace with good amenity. The impact of the proposal on the important and iconic views from dwellings to the south and east of the site is not reasonable, within the meaning of both Tenacity [29] and Super Studio v Waverley (2004) 133 LGERA 363; [2004] NSWLEC 91 [5].
I am not satisfied that the proposal promotes the sharing of views.

The proposal does not ensure the height of development is appropriate to the condition of the site and its context

I do not accept the applicant's argument that there are taller buildings that exceed the height of buildings development standard in the vicinity of the site and this justifies the proposed exceedance of the height of buildings development standard, for the following reasons:

As noted by Ms Music, a number of buildings in the vicinity of the site predate the current controls.
Mr Harrison has determined the height exceedance of 3.21m at 26-34 McElhone Street (Ex C, p 19) based on the gable height RL22.33 adjacent to Brougham Street at the southern end of the eastern elevation and the ground level of RL4.12 on McElhone Street closer to the northern end of the western elevation, where McElhone Street is lower that Brougham Street and falls to the north-east. Given the scant information before me, it is impossible to accurately determine the numerical value of any height exceedance of nearby buildings.
The accuracy and precise location of levels shown on the locality survey included in the joint report was queried by the Council and the survey was not defended by the applicant. The survey included in the experts' joint report (Ex 3) does not conform to the requirements for survey plans at Schedule A of the Court's Practice note for Class 1 Development Appeals.
Woolloomooloo is a natural amphitheatre and its appropriate for the urban form to respond to that topography so that buildings behind the site that have elements that are higher than the existing building on the site do not necessarily justify raising the height of the building on the site in response.

The presence of other examples of roof gardens within the locality does not justify an exceedance of the height of buildings development standard. It is clear from DCP 2012 that the Council encourages the integration of green roofs and walls into the urban fabric.

The proposal is not consistent with the relevant height of buildings development standard objectives

The applicant submitted that the proposal need only be "not antipathetic" to the zone objectives and relevant height of buildings development standard objectives to be consistent with those objectives, citing Pearlman CJ's decision in Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 ("Schaffer"). Bignold J in Gillespies v Warringah Council (2002) 124 LGERA 147; [2002] NSWLEC 224 [165] overturned the "antipathetic" test in Schaffer and held that the meaning of "consistent" in relation to the clause he was construing (being consistent with a zone objective) assumed its ordinary and natural meaning and that meaning was not confined to the notion of the proposed development "not being antipathetic" to the desired future character of the locality. I adopt the same ordinary and natural meaning of "consistent" in relation to the requirement under cl 4.6(4)(a)(ii) of LEP 2012 that development consent must not be granted for development that contravenes a development standard unless I am satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the height of buildings development standard.
For the reasons given above, I am not satisfied that the proposal is consistent with objectives (a) and (c) of the height of buildings development standard at cl 4.3(1) of LEP 2012 and pursuant to cl 4.6(4)(a)(ii), the proposal is therefore not in the public interest.

Green policies

I accept the applicant's submission that DCP 2012 Schedule 9 and the various relevant policies for encouraging greening of urban environments, including the Green Roofs and Walls Policy (Ex 3 Annexure 4), can be used to guide and justify retrofitting an existing building with a roof garden and that weight should be given to a detailed policy that has been the subject of research and public consultation (Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 [92]). In this case, however, the applicant's written request has not adequately addressed the matters required to be demonstrated by cl 4.6(3) of LEP 2012 and the various relevant policies in relation to greening of urban environments cannot overcome this flaw.

Conclusion

The written request to contravene the height of buildings development standard does not adequately demonstrate that compliance with the height of buildings development standard is unreasonable or unnecessary in the circumstances of this case.
The proposal is not consistent with the relevant objectives for the height of buildings development standard.

Orders

The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. D/2018/335 for alterations and additions to an existing mixed-use building to include a trafficable roof terrace and roof garden on the rooftop of the fifth floor of the building to be used as additional private open space for 400/65 Cowper Wharf Roadway, Woolloomooloo, is refused. 3. The exhibits, other than exhibits 1, A and D, are returned.

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: 26 February 2020

(2002) 124 LGERA 147

(2004) 136 LGERA 254

(2004) 133 LGERA 363

(2007) 156 LGERA 446

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