CSA Architects Pty Ltd v The City of Sydney Council

The proposal 5The proposal provides for alterations and additions to the existing building and its conversion into a residential flat building comprising 5 x 1 bedroom apartments and 10 x 2 bedroom apartments over 4 levels (basement/car parking, ground floor, level 1 and level 2). 6The basement level utilises the existing floor slabs for its roof and floor for parking and a garbage bin room with access off William Lane. 7The ground floor utilises the existing floor slabs for its roof and floor and provides for 5 apartments that extend from the William Street frontage (including a 1 m wide landscaped area and a balcony area) to the William Lane alignment. 8Level 1 provides for 6 crossover apartments that face William Street with a setback of 3.1 m and the upper level (Level 2) facing William Lane with a setback of around 4 m. Level 1 also contains 4 x 1 bedroom apartments facing William Lane with a building setback of 3.35 m. This setback area is used for landscaping and a balcony for each of the apartments. 9Level 2 provides the upper level floor area for the crossover apartments on the first floor. The setbacks at this level are around 15 m to William Street including 5 m of terrace and landscaping and around 4 m to William Lane. While the basement, ground floor and level 1 utilise existing floor slabs (with an extension), the proposed level 2 is a new floor slab. 10The surrounding area is generally characterised by industrial/warehouse buildings with the exception of a large local public park and tennis courts on the opposite side of William Street. The site to the north is vacant and used for truck parking.

Relevant planning controls 11The site is within Zone No 10(a) - Mixed Uses "A" Zone under South Sydney Local Environmental Plan 1998 (LEP 1998). The proposal is permissible with consent in this zone. Clause 10 provides that consent must not be granted unless the proposal is consistent with the objectives of the zone . 12South Sydney Development Control Plan 1997: Urban Design - Part G: Special Precinct No. 9 Green Square (DCP - Part G) applies. Clause 1.1 identifies the land to which DCP - Part G applies and includes the site. Clause 1.3 states that DCP - Part G complements South Sydney Development Control Plan 1997 (DCP 1997) and must be used in conjunction with DCP 1997 and where there is an inconsistency, the provisions of DCP - Part G shall prevail, as far as they apply to the Green Square Urban Renewal Area. Clause 3.2 addresses Built Form and provides for an FSR of 1:1, a maximum FSR of 1.2 5:1 (Map 6) and a height of 9 m (Map 7). Clause 3.2.1 addresses Building Type and Envelopes and provides that the predominant height of buildings must be in accordance with Map 7 but not including an attic defined in DCP 1997. Clause 3.2.2 addresses Height and Scale variations. Clause 3.2.3 addresses Site Coverage and provides for a 65% site coverage for residential development. 13The council contends that the proposed development has an FSR of 1.97:1, a non-compliance with the height requirement including the concession for an attic and 97% site coverage. The applicant contends that the proposed development has an FSR of 1.85:1, a non-compliance with the height requirement including the concession for an attic and 97% site coverage although the variations can be supported for a number of reasons that are set out later in the judgment. 14DCP 1997 applies to the extent allowable under cl 1.3 of DCP - Part G. Clause 4 sets out how DCP 1997 is to the used and cl 2.3 addresses Height and scale, including attic height controls. 15State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (cl 30(2)(c)). 16Draft City of Sydney Local Environmental Plan 2010 applies to the site and was exhibited until the end of January 2011 however due to its infancy could not be seen as imminent or certain.

The evidence 17Ms Kylie-Anne Pont provided evidence for the council and Mr Anthony Betros provided evidence for the applicant. Both experts are town planners. Ms Pont and Mr Betros agree that the residential development is appropriate for the site as it is consistent with the changing character from industrial/warehouse to mixed use and is encouraged by the zoning and objectives. They also agree that the existing visual catchment is predominantly defined by warehousing and light industrial developments with around 100% site coverage and generally one and two storeys in height. The wider catchment has a mixture of land uses varying from public recreation, converted warehouse developments, bulky goods, and residential uses of different types. 18Ms Pont and Mr Betros disagree on the appropriate means of assessing the proposed development. Ms Pont maintains that new residential development should comply with the core planning controls in DCP - Part G in relation to maximum FSR, height and site coverage whereas Mr Betros maintains that the alterations and additions result in a building, which is in character with the surrounding built environment. The form and site coverage is also consistent with the overriding bulk and scale of existing warehouse buildings and the FSR objectives in cl 2.2 Part E of DCP1997.

Is the proposal consistent with the zone objectives? 19The proposed development is permissible within Zone No 10(a) however cl 10 provides a pre-condition to the granting of consent unless the proposal is consistent with the objectives of the zone . 20The Court has generally adopted "consistent with" as meaning not antipathetic, nor incompatible or inconsistent with ( Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 and Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190) although the ordinary and natural meaning has also been used by the Court ( Dem Gillespies v Warringah Council [2002] NSWLEC 224). A finding that the proposed development is consistent with the zone objectives is necessary for the consideration of the merits of the proposed development. 21The relevant objectives were identified as objectives (c) and (g). These objectives state: (c) to ensure that building form, including alterations and additions, is in character with the surrounding built environment and does not detract from the amenity and environmental quality enjoyed by nearby residents, and (g) to ensure that development contributes to a sustainable, vibrant community, and reflects equal and integrated consideration of social, economic and environmental design issues, and

Objective (c) 22Objective (c) has two separate parts, firstly the proposed development is to be in character with the surrounding built environment and secondly, the development is not (to) detract from the amenity and environmental quality enjoyed by nearby residents. 23On the first part of objective (c), the surrounding built environment is predominantly industrial. I did not understand that Ms Pont or Mr Betros rely on this character (or built environment); rather both address the desired future character anticipated by DCP - Part G and DCP 1997 for residential development. This is consistent with the approach in SEPP 65 where the design quality principles in Part 2 refer consistently to " a location's current character or, in the case of precincts undergoing a transition, the desired future character as stated in planning and design policies" . The site is undoubtedly in a precinct undergoing a transition and the relevant planning and design policies are DCP - Part G and DCP 1997. 24DCP - Part G and DCP 1997 are matters that must be considered under s 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979. The emphasis to be given to a development control plan (DCP) is addressed in Zhang v Canterbury City Council (2001) 115 LGERA 373 where Spigelman CJ, at par 75, raises three important propositions. First, and although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a local environmental plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative. 25I do not accept that the approach adopted by Ms Pont that the proposed development should comply with the numerical FSR, height and site coverage requirements in DCP - Part G to gain approval even though the development application seeks to utilise part of the existing building. There is no obligation on an applicant to demolish or partly demolish a building to comply with the numerical requirements of a DCP. There is also no obligation on an applicant to justify the retention of part of a building or the whole building of a building on the basis that the retention can be supported on sustainability grounds through the reuse of materials and energy savings, although I accept that it could be argued that this would be a positive aspect of a development. If an applicant seeks to retain part of an existing building or the whole existing building then there are risks that the numerical non-compliances may lead to the refusal of the application even though it may be argued (as done by Mr Betros) that there was consistency with the relevant objectives notwithstanding the numerical non-compliances. 26The approach adopted by Mr Betros is also questionable because of the significant reliance on an objective based assessment. If DCP - Part G and DCP 2007 are to be given proper consideration, or in the words of Zhang , considered as a fundamental element in, or a focal point to, the decision-making process, the numerical standards and the relevant objectives must be considered conjunctively, rather greater weight given to the numerical requirements or the objectives. I do not accept the submission of Ms Duggan SC that somehow cl 4 of DCP 2007 gives preference to the objectives over the numerical standards (even accepting that cl 4 applies, given cl 1.3 of DCP - Part G) and provides flexibility in satisfying numerical requirements (or performance criteria as stated in DCP 2007). The numerical standards must have a planning purpose and be given weight in the decision-making process. 27This is reinforced by cl 3.2 of DCP - Part G that provides requirements for Built Form, particularly FSR, height, site coverage. The introductory paragraph states, in part: ....built form controls must strike a balance between a level of certainty through prescriptive controls whilst allowing for some flexibility and variation to achieve the diverse urban form desired for Green Square. 28Ms Pont calculates the FSR at 1.97:1 whereas Mr Betros calculates the FSR at 1.85: 1 although the difference in the calculations is not critical to the issue of whether the breach of the FSR requirement can be supported or not. Clause 3.2 of DCP - Part G, through Map 6, provides for an FSR of 1:1 and a maximum FSR of 1.25:1. In this clause, the 1:1 FSR is described as the base FSR and the 1.25:1 FSR as the maximum bonus FSR that is "specifically intended to encourage the provision of material public benefits over and above Section 94 requirements". I did not understand the applicant proposed any additional material public benefits to gain the benefit of the maximum bonus FSR, so based on the requirements of cl 3.2 of DCP - Part G, the appropriate FSR for the development is 1:1. However, for the purposes of considering the proposed development against the future character of the area, an FSR of 1.25:1 should be used as this FSR is available, but subject to the provision of some form of material public benefit. 29Under any assessment, the proposal provides for a significant variation to the FSR requirement of 1.25:1. In summary, Mr Betros supported the variation on the basis the intensity and overall bulk form use is suitable in this context and appropriate for the site itself. The streetscape presentation and built form of the proposal is an improvement on the existing building and sits comfortably in the streetscape. The proposal further satisfies the objective of the FSR control in DCP 1997, as there are no external amenity impacts in terms of overshadowing, privacy and view loss. Ms Pont relies significantly on the numerical non-compliance for her opinion that the proposed FSR warrants the refusal of the application. 30In balancing the competing evidence, I agree with the conclusion of Ms Pont that the proposed development is inconsistent with the anticipated desired future character for a number of reasons, but not necessarily for the reasons identified by Ms Pont. First, on the site inspection the Court was taken around the area adjoining the site and estimates made of the likely visual impact of the proposed development, particularly the proposed new upper level. There was general agreement that parts of the new upper level could be seen from the public open space area on the opposite side of William Street and from some more acute viewing locations along William Street and William Lane. From many locations the upper level is screened by the parapet along the William Street frontage and the setback to William Lane. 31The visual impact and perception of bulk associated with FSR is however only part of the consideration required. Consideration must be given to the numerical FSR standard. It would be an absurdity in planning terms if unlimited FSR could be provided simply on the basis that it could not be seen, or in this case, seen but with little effect. Compliance, or greater compliance with the standard, in this case, could result in a development that does not even provide the limited views of the new upper level and consequently, no issues with visual impact or bulk. Ms Pont calculates that the upper floor of the proposed development has an area of 379 sq m or an equivalent 0.39:1 FSR. Even with the removal of the new upper level, the FSR would still exceed the 1:25 FSR requirement, although the adaption of the existing building for residential purposes, without any new floor area would, in my view, be more supportable than the proposed development. 32Second, I do not accept the evidence of Mr Betros that the existing industrial building has a similar floor area to that proposed in the development application. While technically correct as the existing building has an FSR of 1.92:1, the exclusion of the basement level from the assessment of floor space for the proposal because it is used for car parking is misleading. The basement floor area is effectively transferred to the top of the upper level of the building as new floor area. This clearly adds to the bulk and visual appearance of building, even accepting that there are limited locations where this additional floor area can be viewed. 33Third, the question of floor area also needs to be considered in the wider planning outcomes sought by DCP - Part G. DCP - Part G not only specifies the amount of floor area but also the distribution of floor area over a site. Clause 3.2 3 c states that buildings are "generally built to the perimeter of sites to form enclosed courtyards". Clause 3.2 .6 states that "the courtyard block edge building height has been embraced as the most suitable form of development for Green Square". This form of design is generally consistent with the maximum site coverage controls that, for the proposed development, provides for a 65% maximum site coverage. 34While there may be reasons why all new development in Green Square may not adopt the courtyard block edge building design, it does mean that if a building is built to the perimeter of the site (or in this case, utilises an existing building) that there is an entitlement to fill the site from boundary to boundary with floor space, particularly given the FSR and the site coverage requirements. 35Fourth, and while precedent is a valid planning consideration ( Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75) it is raised in many cases as an issue without any substantive basis. In this case however, I am satisfied that precedent is a relevant matter to take into consideration. The proposed development is the first development in the locality to change from the traditional industrial use to a residential development. The proposed development, with it's significant variation to the FSR requirement, could reasonably be used as a benchmark for other nearby redevelopment, particularly when it is necessary to consider the zone objectives, particularly zone objective (c), that requires a development to be consistent with the character of the surrounding built environment. This has added importance when the adjoining property to the north is vacant. 36Ms Pont and Mr Betros disagreed on whether the height was acceptable. Their positions reflected their general approach to the application; Ms Pont stating that the height is unacceptable because the breached the height and attic requirements and Mr Betros stating that the breach of the height requirement was acceptable because of the lack of impacts. The height requirement relies on DCP - Part G for the 9 m height plus the attic controls in cl 2.3 of Part E of DCP 1997 that provides for floor area to be contained within a 36 line above the 9 m height. Mr Betros provided a cross-section of the proposed building indicating the height limits imposed by DCP - Part G and DCP 1997. This indicates a relatively small breach of the upper level towards the William Lane frontage. 37I accept the evidence of Mr Betros that the breach of a height requirement could be overcome by moving the upper level towards William Street however this would have a greater of impact on William Street streetscape. If the proposed development raised no issue with the amount of floor space and the FSR requirement, the breach of the height requirements would not be reason to refuse the application. In this case however, the breach of the height requirement is unacceptable because of the excessive floor area that manifests itself through the new upper level. 38Clause 3.2.2 addresses height and scale variations. The clause states: Variations in height within blocks can provide for openness and permeability through large development sites or to reinforce prominent locations; there will be situations where heights in parts of a site may be capable of taking a height above the predominant heights, and still satisfy environmental and amenity consideration. However, this will require a more detailed assessment of a site's context. The onus is on the applicants to demonstrate the Consent Authority, by way of block analysis, how a site is capable of taking variations. Variations will only be considered where it can be demonstrated that the net result does not diminish the built form objectives of the Urban Framework overall. 39The Urban Framework, referred to in cl 3.2.2 is the "physical expression of the vision and the Planning Principles for Green Square" and includes the controls, objectives and performance criteria for relevantly FSR, height, building design and site coverage. For the reasons mentioned in the previous paragraphs, I am not satisfied that it has been demonstrated that the net result of the proposed development does not diminish the built form objectives of the Urban Framework contained in cl 3 DCP - Part G. 40The second part of objective (c) provides that the development is not to detract from the amenity and environmental quality enjoyed by nearby residents. Given that the proposed development sits exclusively amongst industrial development or vacant land, a finding that the development would detract from the amenity enjoyed by nearby residents could not be reasonably made. If environmental quality was seen to include visual impact and the bulk of the proposed development, then I can could conclude that there would be a reduction in the environmental quality because of the excessive floor area that manifests itself through the new upper level and it's visibility from the public domain, even though the ability to see this area is limited to a number of locations. 41In accordance with cl 10, I find that the proposed development is inconsistent with zone objective (c) and that the proposed development must be refused.

Objective (g) 42Ms Pont provided little specific evidence that the proposed development was inconsistent with that objective (g). Mr Betros maintained that the proposed development is consistent with this objective as the retention of much of the existing building adopts a sustainable approach while the new dwellings outperforms the solar and ventilation requirements of SEPP 65, thereby reducing reliance on artificial heating, lighting and cooling. The incorporation of landscaping along the William Street frontage also provides effective greenery to the streetscape, consistent with the surrounding context. 43In my view, the proposed development is consistent with that part of the objective relating to the development contributing to a sustainable, vibrant community through its conversion to residential apartments. I am also satisfied that the development is consistent with that part of the objective relating to an equal and integrated consideration of social, economic and environmental design issues. Given the orientation of the building, I am satisfied that adequate solar access is provided and that the design is innovative and functional through the use of crossover units for good natural ventilation, although a design with a reduced FSR could potentially provide greater levels of solar access to the apartments.

The merits 44A consideration of the merits does not arise as the assessment required by cl 10 dictates that the appeal must be dismissed and the development application refused however the following comments are relevant. 45The assessment that led to the failure of the development to be consistent with zone objective would effectively mirror the merit assessment of the development against the relevant planning controls. In general terms, the planning controls must be considered as a group of individual requirements, that include both the numerical requirements and objectives, that collectively create the form of development seen as being appropriate for the site. Even compliance with the majority of planning controls and the non-compliance with a single control may not achieve the appropriate form of development. 46In my view, to allow an FSR of around 1.9:1 when the maximum FSR is 1:1 would be to effectively abandon the numerical requirements for FSR in DCP - Part G and DCP 1997 even allowing for the general flexibility available for a DCP and the specific requirements that allow for variations in DCP - Part G and DCP 1997.

Orders 47The orders of the Court are:

1. The appeal is dismissed.
2. Development Application D/2010/1529 for alterations and additions to an existing industrial building for residential apartments at 11-13 William Street, Alexandria is refused.
3. The exhibits are returned with the exception of exhibit 2. G T Brown Commissioner of the Court

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: 17 March 2011