Great Wall Property Group v North Sydney Council

DATES OF HEARING: 18/08/2005, 19/08/2005 and 29/09/2005

Applicant: Ms H Irish, barrister instructed by Ms L Leece of Mallesons Stephen Jaques LEGAL REPRESENTATIVES: Respondent: Mr N Hemmings, QC instructed by Mr H Kahagalle of Allens Arthur Robinson

JUDGMENT:

• 18 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10272 of 2005 Great Wall Property Group Pty Ltd v North Sydney Council (No 2)

JUDGMENT 1 Senior Commissioner: This is the second judgment on an appeal against the refusal by North Sydney Council (the council) of a development application to demolish the existing buildings and erect a mixed-use development consisting of a 21-level building containing 3,664m2 of commercial floor space and 68 apartments with three levels of basement parking for 61 cars, on lots 1A, 2A, 4A and 5A DP 244474, and lot 1 DP 953976, known as Nos 3, 5-7 and 9-11 Ward Street, North Sydney. 2 The appeal was first heard on 18 and 19 August 2005. It was agreed that the there were three substantial issues to be decided. On 31 August 2005 the Court published its first (or preliminary) judgment in which it decided the second and third issues. As regards the first issue, whether the proposal unfairly constrains the development potential of adjacent sites was not decided because of insufficient evidence on the constraints on adjacent sites. 3 The Court reconvened on 29 September 2005 to hear further evidence on the first issue. This second judgment is an expansion of the first judgment published on 31 August 2005. It incorporates the essential elements of the first judgment thus avoiding the need for the reader to refer to the first judgment.

The site 4 The site is on the eastern side of Ward Street, which, with its 9m-width, is more like a laneway than a street. On the western side of the street is a property owned by the council and occupied by a commercial carpark currently operated by Wilson Parking (the council carpark site). To the north the site adjoins the northern section of the carpark and the south end of Harnett Street, which is a cul-de-sac. To the south the site adjoins an electricity substation. To the east the site adjoins four allotments: a multi-storey office building at 76 Berry Street (the People Telecom building), and Nos 136, 138-140, and 142 Walker Street. Three two-storey apartment buildings now stand on the latter three sites. Along Walker Street to the north, No 142 adjoins a series of heritage-listed buildings of two storeys.

The proposal and its history 5 The applicant proposes to demolish the existing buildings and erect a mixed-use development consisting of a 21-level building containing 3,664m2 of commercial floor space over five levels, 68 apartments, and three levels of basement parking for 61 cars. 6 The applicant lodged the development application in June 2004. Following notification, the council received 21 submissions. Amended plans were lodged in July and October 2004, this time attracting three submissions. In July 2004 the council's Urban Design Advisory Panel considered the proposal. In relation to the setback from Ward Street, the Panel noted that …the core of the proposed tower is not set back above the podium, but that the remainder of the tower is set back 1.5, and that this may be acceptable given the narrowness of the site. (Note: based on the drawings before the Court, the 1.5m setback appears incorrect.) The Panel supported the application, though with the proviso that the council is satisfied that "the development of the council-owned site to the west would not be unnecessarily compromised ". The Panel did not consider the setback to the eastern boundary or the impact on the development potential of 136-142 Walker Street. 7 In October 2004 the council received a planning report from its planning staff recommending refusal. At its meeting on 6 December 2004, the council resolved to defer the matter pending a review by an independent consultant. JBA Urban Planning Consultants reviewed the proposal and recommended approval. The council did not accept the recommendation and refused the application in March 2005. The applicant filed the appeal in March 2005. 8 The council has received an application for a 35-storey building on two of three sites adjoining to the east, No 136-140 Walker Street. In July 2005 the council's Urban Design Advisory Panel commented negatively on the proposal. The council subsequently refused the application and the applicant has lodged an appeal with this Court. There is no proposal before council for the third site, 142 Walker Street.

Relevant planning controls 9 Local Environmental Plan 2001 (the LEP) zones the site Mixed Use. Development Control Plan 2002 (the DCP) applies including the area character statement for the Central Business District. State Environmental Planning Policy 65 - Design Quality of Residential Flat Development (SEPP 65) and its ancillary Residential Flat Design Code (RFDC) apply. 10 State Environmental Planning Policy 1 - Development Standards (SEPP 1) applies to any variation of development standards either on the subject site or on adjoining sites.

The issues 11 The council's Statement of Issues contained four issues of which it pressed three, namely: · Does the proposal constrain the development potential of the council carpark site and Nos 136-140 Walker Street? · Should the tower element s set back by 2m from Ward Street; s move 7m towards the north? · Should there be connection to the open space to the north of People Telecom building?

The experts 12 In the absence of Court-appointed experts, the council relied on the evidence of Mr G Mossemenear, the council's executive manager of development control, and Ms G Morrish, an architect and urban designer. The applicant relied on the evidence of Ms M Higgins, a town planner, and Mr M Harrison, an architect and urban designer. The four experts gave concurrent evidence at the hearing on 18 and 19 August 2005. 13 On the last hearing day on 29 September 2005 Ms Morrish was absent, and the other three experts were joined by Mr T Byrnes, an architect-planner retained by Castle Properties, the owner of 136-140 Walker Street, and by Mr D Barker, an architect retained by Vergome Pty Ltd, the owner of 142 Walker Street.

The objectors' concerns 14 During a view of the site the Court heard the evidence of eight objectors. Mr D Sneddon, a consultant planner who represented Energy Australia, said that his client intended to stay at its present location and perhaps upgrade the substation in future. The main concern was that noise and soot emanating from the substation might annoy future residents of the proposal. I note that the proposal has a blank wall towards the substation site. 15 Mr John Derrick, the property manager of No 76 Berry Street, said that he was concerned that future residents might find the illuminated "PEOPLE Telecom" sign on his building disturbing and might object to future changes of the sign. In addition, there was a danger that the proposed apartments would overlook the gardens at ground level and the rooftop of the building. 16 Mr P Witts, the State manager for Wilson Parking, said that the proposal would increase traffic in Ward Street with negative results for the flow into and out of the parking station. 17 Ms Barbara Noden, who lives at 45 McLaren Street, was concerned about the noise from the proposed development disturbing the south-facing bedrooms in her building. She considered the proposal to be too big and unsuitable for the locality. Mr G Payne, of the same address, supported all Ms Noden's concerns. He added that the proposal did not provide sufficient parking spaces. Mr P Diamond, also of the same address, added that the proposal would create a canyon effect and that it contained too many people. 18 The council tendered a letter of objection from Mr V Lahoud, a director of Castle Constructions, the owner of 136-140 Walker Street. Mr Lahoud states: There is no proper basis for the claim made by the developer of the proposal currently before the Court that the development on 136-140 Walker Street is restricted to RL 77 by reason of compliance with the shadow controls referred to in the LEP. The Ward Street development should therefore respect the equitable principle of setting back from the boundary half the distance judged by this honourable Court to be appropriate for the separation between two high-rise buildings. 19 Mr Lahoud's objection was fully explored during the hearing on 29 September 2005. 20 Mr R Brennan, who represented Vergomi Pty Ltd, the owners of 142 Walker Street, was concerned with the same issue as Mr Lahoud, namely the impact on development potential. Mr Brennan agreed, however, that No 142 could be developed only on the basis of a successful objection under SEPP 1, since its area was short of the 1,000m2 required by cl 28D(2)(e) of the LEP. Mr Brennan's objection was fully explored during the hearing on 29 September 2005.

Impact on the development potential of the council carpark 21 The council carpark site is on the western side of Ward Street, extending to a section to the north. If the carpark site is redeveloped, the council intends to convert the northern section into a reserve and restrict buildings to the western section. That section is 62m long and 43m deep. To the west it adjoins two high-rise office buildings. 22 The Character Area Statement for the Central Business District under the DCP requires a weighted average setback of 4m for towers above a two-to-three-storey podium in Ward Street. At the commencement of the hearing Ms Higgins said that the weighted average of the proposal's setback from Ward Street was 1.3m. Because the drawings tendered did not specify setback distances from Ward Street, it was not possible to verify this. At my request the applicant supplied the dimensions of the setback. They were 0.983m at the northern end and 0.830m at the southern end. I note that about 9m of the building's length is on the boundary and there are two indentations of 2m, each of about 2.5m length. I conclude from the above that the weighted average setback of the building is under 1m (and not 1.3m). Louvres within the setback cover about 80% of the Ward Street façade. The effective setback is therefore reduced by the width of the louvres, which scales 400mm on the drawings. The effective setback therefore is about 0.5m. 23 In Mr Mossemenear's view, the 4m requirement of the DCP should be given considerable weight. He said that the objective of the setback is twofold: first, to provide for adequate building separation between residential buildings and, second, to achieve a reasonable streetscape in Ward Street. He pointed out that the proposed 64m high building is virtually on the street alignment. Given the 9m width of Ward Street, the proposed building would unreasonably dominate the street. 24 Mr Mossemenear pointed out that a 4m setback on each side, together with 9m width of Ward Street, would provide a separation of 17m between buildings. This was only slightly under 18m, which he considered acceptable given the privacy louvres covering the larger part of the tower's west-facing façade. Mr Mossemenear then went on to justify the fact that the Statement of Issues required the applicant to set back by only 2m, not 4m from Ward Street. The reason was that the subject site had a depth of only 21m. A 4m setback, combined with a larger setback to the east, might make it impossible to design a viable tower. 25 Ms Morrish pointed out that, the required separation between habitable rooms being 24m, the tower should set back 7.5m from the street alignment. Ms Higgins suggested than an acceptable separation between high-rise buildings would be 12-13m. I understand that she based her opinion on the existence of louvres on the proposal's west-facing elevation. To achieve 13m separation, a future building on the carpark site would have to set back 4m. She justified the unequal setbacks between the carpark site and the subject site on the fact that the former had a greater depth and could afford to set back further. 26 Mr Harrison agreed with Mr Mossemenear that an acceptable separation between a future building on the carpark site and the subject proposal was 18m. He agreed that this would require a building on the carpark site to set back about 8m from Ward Street. Like Ms Higgins, he justified this by the fact that the carpark site was larger. 27 The experts before the Court suggested three different dimensions as being appropriate for separating the habitable rooms in two high-rise residential buildings. The distance that Ms Morrish considered appropriate was twice that suggested by Ms Higgins. In my opinion, Ms Morrish's preference for a 24m separation is achievable only if the subject site were amalgamated with 136-142 Walker Street. Ms Higgins' preference for 12m would produce unacceptable living conditions, notwithstanding all the privacy devices one may hang on a building. I accept Mr Mossemenear and Mr Harrison's suggestion that an 18m separation would be acceptable. Given that the proposal now comes within 500mm of the street, this would require a future building on the carpark site to be set back 8.5m. If it were set back only 4m, the separation would be only 13.5m. It is therefore hard to escape the conclusion that the subject proposal severely constrains the development potential of the council carpark site. 28 It is a well-established principle of planning that a development should not rely on neighbouring sites for its amenity, nor should it require other sites to forgo development potential. Where a separation distance of 10m is desired, each development should provide 5m. The fact that it is easier to provide the setback on one site than the other, is irrelevant. 29 The proposal directly contravenes this principle. It would require that a residential building on the council carpark site be set back 8.5m, or twice the distance required by the DCP and 17-times the setback of this proposal. There is every reason therefore to respect the 4m setback required by the DCP. I note, however, that, in its Statement of issues, the council identified only a requirement for a 2m setback from Ward Street. Mr Mossemenear said that he had indicated to the applicant in earlier negotiations that he would accept a 2m setback. In view of this the Court would also accept a 2m setback, provided it was measured from the de-facto face of the building, which is the edge of the louvres. 30 I note that the independent assessment by JBA Urban Planning Consultants had considered the proposal's setback from Ward Street acceptable (though it appears that the author of the report thought that the setback was greater than it is). The conclusion that the setback did not prejudice the development potential of the council carpark site was based on a building envelope study undertaken by Architectus, a consultant to the applicant in these proceedings. It is the same building envelope study that is before the Court. The study shows a high-rise building on the council carpark site 24m from the subject proposal and therefore about 14m from the Ward Street alignment. The JBA report did not prepare its own independent building envelope study. It accepted without comment that development on one side of the street should provide all of the required separation between buildings. For these reasons the JBA Urban Planning Consultants report is of no assistance to the Court. 31 In note that the proposal is a 64m high building virtually on the alignment of a 9m wide street. Mr Harrison has used various angles of perception to suggest than passers-by will not see that part of the building, which is above an angle of 45o. I note that the angle of perception is shown from a point directly opposite the site, and not, for example, from the corner of Ward and Berry Streets or the southern side of Berry Street looking north. I note also that the material before the Court did not include a perspective drawing or photomontage indicating how the proposed building would appear from those vantage points.

Interpretation of Clause 28D of LEP 2001 32 Because of the importance of cl 28D in these proceedings, I shall quote subclauses 28D(2), (3) and (4) in full. (2) Building heights and massing controls Consent must not be granted to the erection of a building within the North Sydney Centre, unless: (a) the height of the building will not exceed RL 195 AHD, and (b) there is no net increase in overshadowing of any land between the hours of 9am and 3pm, 21 June outside the composite shadow area, as shown on the map marked "North Sydney Local Environmental Plan 2001 (Amendment No 9)- North Sydney Centre" (except land that is in the road or Railways Zone), and (c) there is no net increase in overshadowing, between lOam and 2pm, at any time of the year, of any land that is within the North Sydney Centre and is within the public open space zone or within a special area as shown on Sheet 5 of the map marked "North Sydney Local Environmental Plan 2001 (Amendment No 9)- North Sydney Centre", and (d) there will be no increase in overshadowing that would reduce the amenity of any dwelling that is outside the North Sydney Centre and falls within the composite shadow area referred to in paragraph (b), and (e) the site area is not less than 1,000 square metres. (3) State Environmental Planning Policy No l-Development Standards does not apply to a requirement made by subclause (2) (a), (b) or (c) (including a requirement varied under subclause (4)).

(4) Minor variation of overshadowing controls The consent authority may make a determination to vary, to a minor extent only, the operation of subclauses (2) (b) or (c), or both, in respect of a particular development application, but only if: (a) it is satisfied that the variation is justified due to the merits of the development application and the public benefit to be gained, and (b) it is satisfied that any increase in overshadowing will not reduce the amenity of any land, and (c) in relation to a variation of the operation of subclause (2)(b), the variation will result in not more than 2 hours net increase in overshadowing of land referred to in that paragraph between the hours of 9am and 3pm, 21 June, and (d) in relation to variation of the operation of subclause (2)(c), the variation will result in not more than 15 minutes net increase in overshadowing of land referred to in that paragraph between the hours of 10am and 12 noon, and no net increase between the hours of 12 noon and 2pm, on any day. 33 The parties placed different interpretations on the above subclauses. Ms H Irish, for the council, contended that subclauses 28D(2)(d) and (e) were subject to variation under SEPP 1. Mr N Hemmings, QC, for the applicant, contended that these two subclauses were prohibitions and could not be varied under SEPP 1. I accept Ms Irish's interpretation. In my opinion, subclauses 28D(2)(a), (b), (c), (d) and (e) are all development standards. Subclause 28D(2)(a) cannot be varied under SEPP 1 or under any part of the LEP and is therefore an inflexible development standard. Subclauses 28D(2)(b) and (c) cannot be varied under SEPP 1, however, they can be varied under a kind of 'internal SEPP 1' provided by 28D(4). Subclauses 28D(2)(d) and (e) are not prohibitions and can be varied under SEPP 1. If SEPP 1 did not apply to cl 28D(2)(d) and (e), cl 28D(3) would say so expressly. However, if I were wrong in the above interpretation, the conclusions that I reach below would not be affected by the error.

The Building Height Plane 34 Clause 30 of LEP 2001 refers to building height planes. (1) Building height plane objectives The specific objectives of the building height plane controls in the mixed use zone are to: a) ensure compatibility between development in the mixed use zone and adjoining residential or open space zones, and b) minimise adverse effects on land in adjoining residential or open space zones in relation to ventilation, views, building separation, solar access and light and to avoid overshadowing of windows, landscaped areas, courtyards, roof decks, balconies and the like. (2) Building height plane controls A building must not be erected in the mixed use zone, on land that adjoins or is adjacent to land within a residential or open space zone, if any part of the building will exceed a building height plane: a) commencing 1.8 metres above existing ground level, projected at all points from each of the boundaries of the site which adjoin land within the residential A1, A2, B, D or F zone or open space zone, or b) commencing 1.8 metres above existing ground level, projected from the centre of any road which separates the land from land within the residential A1, A2, B, D or F zone or open space zone, or c) commencing 3.5 metres above existing ground level, projected at all points from each of the boundaries of the site which adjoin land within the residential C zone, or d) commencing 3.5 metres above existing ground level, projected from the centre of any road, which separates the land from land within the residential C zone. 35 The building height plane that applies to 136-142 Walker Street is defined by cl 30(2)(d). It was common ground between the parties that the building height plane was a development standard and subject to variation under SEPP 1.

The development potential of 136-142 Walker Street 36 While there were separate objections for 136-140, and for 142 Walker Street, the applicant has considered the three sites in an amalgamated form. This is a sensible approach, since No 142 by itself is significantly short of the minimum allotment size in the LEP. However, the sites are not amalgamated and, as mentioned before, there is a proposal for No 136-140 that has been refused by the council and is on appeal before the Court. In the event, little turns on this, since the tower in the subject proposal does not extend to the part of the site where it adjoins No 142; hence the effect of the tower's setback from the eastern boundary is of minor consequence to the development potential of No 142. The consequence flows to No 136-140. 37 The residential section of the proposal's tower is set back 3.5m from the common boundary with 136-142 Walker Street. Mr Harrison and Ms Higgins have justified this on the basis that the development potential of No 136-142 is five storeys, and those five storeys must be in non-residential use to comply with the requirements of the mixed zone. The lower five storeys of the subject proposal are also commercial. In Mr Harrison's and Ms Higgins' view, a separation of 7m is adequate between two commercial buildings; hence the subject proposal's setback of 3.5m from the eastern boundary is sufficient. 38 Mr Mossemenear told the Court that he considered a much bigger development on 136-142 Walker Street would comply with the requirements of cl 28D and may be acceptable. In his opinion a building on 136-142 could reach a height of RL 103, which means nine storeys on top of a five-storey podium. In Mr Mossemenear's opinion, the shadow cast from such a building would comply with cl 28D(4) providing for minor variation of the overshadowing controls in cl 28D(2). 39 Mr Harrison and Ms Higgins disagreed with Mr Mossemenear on three grounds. First Mr Mossemenear had disregarded the building height plane, second, his model did not meet the requirement that there should be no increase in overshadowing that would reduce the amenity of any dwelling that is outside the North Sydney Centre and falls within the composite shadow area; and, third, he had disregarded the impact on the four heritage items to the north of 142 Walker Street. Mr Harrison and Ms Higgins remained convinced that 136-142 had a potential for a five-storey commercial building only. Mr Mossemenear agreed that he had assumed that the building height plane could be varied. 40 Mr Harrison also told the Court that, even if a building on 136-140 were higher than five storeys, a setback of 3.5m on the subject site would be adequate as long as the setback on 136-140 was at least 6.5m. This is because the logical position for a core containing lift and stairs on 136-140 was on the western part of the site where it adjoins the subject site. 41 Unlike Mr Mossemenear, Mr Harrison and Ms Higgins who based their evidence on theoretical building envelopes, Mr Byrnes based his evidence on the building proposal of 35 storeys on 136-140. This is the proposal that has been refused and for which an appeal has been filed with the Court. Mr Byrnes' evidence included a diagram showing the shadows cast by a building of the same floor plan as the proposal on appeal, but limited to a height of RL 119. The additional shadow falls on the northwest blank wall of the Century building, including two triangular balconies from bedrooms. The shadow affects the ten lower floors. Decreasing the floor plan of the proposed building on 136-140 would decrease the shadow; however, it is unlikely that the shadow could be entirely eliminated because that would leave the floor plan too small to be viable. The diagram suggests, however, that a small decrease in the floor plan would remove the shadow from one of the bedroom balconies. 42 I note that Mr Mossemenear had no difficulty with the concept of varying the building height plane. Mr Byrnes thought the application of the building height plane to this site would be "a travesty". Mr Harrison and Ms Higgins considered it important to apply the building height plane in its strictest form. I note that even a strict application of the building height plane would allow a building to approximately RL 96, on the assumption that it is set back 6.5m from the western boundary and has a depth at the top level of 10m. RL 96 corresponds to level 9 in the subject application. 43 The Court thus has before it widely differing assessments of the development potential of 136-140 Walker Street. Mr Harrison and Ms Higgins consider the potential to be five storeys at about RL 77. Mr Mossemenear, who looked at a larger site amalgamated with No 142, considers the development potential to be about 13 storeys at about RL 103. Mr Byrnes, who advocates a 35-storey building, says that an 18-storey building at RL 119 would pass the test of cl 28D with flying colours. 44 The Court must therefore choose from a range of professional opinions suggesting a height limit from five to 35 storeys. It appears that a building up to RL 96 would certainly be possible on 136-140 Walker Street. Such a building would comply with the building height plane. It would cast a shadow on one bedroom balcony per floor in the Century Plaza building from 1pm to 3pm on three or four lower floors. The impact would be so minor that it would have to be described as negligible or immaterial. It would not be considered as "an increase in overshadowing that would reduce the amenity of any dwelling". It would therefore comply with cl 28D(2)(d) even if that clause were a prohibition, which, as I have stated above, is unlikely to be the case. 45 Three further matters need to be dealt with in relation to the issue of the development potential of 136-140 Walker Street. First is the matter of impact on the four heritage items to the north of 142 Walker Street. Mr Mossemenear agreed that he did not seek advice on the impact of his building envelope on the heritage items. I do not think that this of great moment, given that the minimum development potential that the Court accepted was in relation to a site that excludes 142 Walker Street, so the building envelope is not adjacent to the items and is lower than that accepted by Mr Mossemenear. Second, the evidence shows that at one stage Mr Mossemenear accepted that 136-142 had a potential of only five storeys. I accept that, on further reflection, he changed his mind. 46 Third, I have considered Mr Harrison's evidence that even if a higher building than five storeys were allowed on 136-140 it could live with the subject proposal being set back only 3.5m from the common boundary. This assumption relies on the building on 136-140 being set back twice as much from the common boundary as the subject proposal, and on the lift core being at the western end of the site. This would add constraints on a site that, as we have seen, is already subject to heavy constraints. It would be an unfair constraint that favours the owner of the subject site at the expense of that of No 136-140. 47 The consequence of the above conclusion for the relationship between the subject site and 136-140 Walker Street is that there could be at least five residential floors in the subject proposal that would be directly opposite residential floors on the Walker Street site. This means that along the common boundary where the towers overlap (for 15 to 17m) there should be a separation of 13m, of which 6.5m should occur on the subject site. Mr Mossemenear provided a graphic representation of the required setback. The result is a loss of 7% of floor space on the lower floors, less on the upper floors where the building sets back in any case.

Moving 7m to the north 48 The reason that the council suggests moving the tower by 7m (or some distance up to 7m) in a northerly direction is that it would decrease the morning shadow over the forecourt of 79-81 Berry Street. Mr Mossemenear said that the council placed great weight on retaining as much sunlight as possible over the forecourt. Ms Morrish agreed. Mr Harrison and Ms Higgins argued that moving the tower towards the north would have undesirable results including casting a shadow outside the composite shadow. 49 I agree with the council's experts that it is desirable to retain as much sunlight as possible over the forecourt. I note, however, that the forecourt is not a special area shown on Sheet 5 of the map marked "North Sydney Local Environmental Plan 2001 (Amendment No 9)- North Sydney Centre". Amendment 9 of the LEP is specially directed to reducing overshadowing in the North Sydney Centre. The fact that the council has left the forecourt out of the listed special areas suggests that it does not place major weight on its protection. An applicant would have no way of knowing that the protection of sunlight over the forecourt is of higher priority than other urban design objectives. In my opinion, the council's case for moving the tower by 7m to the north is not justified. 50 Mr Mossemenear indicated also that the height of the tower should be reduced by about two storeys. I find it hard to accept this evidence in view of the lack of indication in any of the council's plans of a lower desired height for this site. The most relevant depiction of desired height is a theoretical arc contained in the council's controls, and the proposal is well within it.

Connection with the open space of the People Telecom building 51 The People Telecom building has a pleasant courtyard to its north. A condition of development consent for the building requires public access; however, in practice there is no public access and the space appears as the private open space of a restaurant that operates on the building's ground floor. In Mr Mossemenear and Ms Morrish's opinion, the proposal should connect, practically and visually, to the open space of the People Telecom building. I do not think that a practical connection is feasible. A visual connection may be pleasant, but it is not essential. 52 Like the protection of the Berry Street forecourt, this is another matter that should be included in the DCP, so that applicants can be aware of it before they design and submit an application. In the circumstances, the lack of connection to the open space is not a reason for refusal

Conclusions 53 This application is for a 64m high building, less than 1m from the alignment of Ward Street (a street of only 9m width), and set back 3.5m from its eastern boundary, common with 136-140 Walker Street. The applicant justified the lack of setback from Ward Street on the grounds that the site on the other side of the street had a greater depth and could afford to set back further in order to achieve the desired separation between buildings. The applicant justified the 3.5m setback from the eastern boundary on the grounds that the development potential of the adjoining site was five storeys, and therefore it did not matter if a building on the subject site was built near the boundary. The Court found both arguments to be unsound. The proposed building should be set back 2m from Ward Street. Along the common boundary with 136-140 it should be set back 6.5m (as graphically indicated by Mr Mossemenear in Exhibit B), in order to allow for a 13m separation between residential towers. 54 I am aware that the above decision will result in a reduction of floor space from that contained in the application. However, this is only because the application is far too ambitious for a site with a depth of only 20m. A proposal modified to comply with the setbacks suggested by Mr Mossemenear and accepted by the Court will reach the highest reasonable development potential of the site. To put it in colloquial terms: if the building needs to be reduced, it is only because it is too big for its site. 55 At the hearing on 29 September 2005 the applicant tendered drawings that showed a building 2m from the Ward Street boundary; however, the setback from the eastern boundary remained 3.5m. I have considered the possibility of publishing the above findings without making orders and of allowing an adjournment so that the applicant may amend the drawings. I have concluded, however, that in this case an adjournment would not be appropriate because the change required to comply with the findings of this judgment is too major. A modified proposal would need to be readvertised and re-assessed under SEPP 65. While having to lodge a new development application may not be convenient for the applicant, it is the most appropriate course when the interests of all stakeholders, ie the applicant, the council, the owners of adjoining properties and objectors, are taken into account. 56 Since the judgment has decided all the issues raised by the council and objectors, there is hope that the matter may be finalised without further recourse to the Court. The appeal is dismissed.

2. Development application to demolish the existing buildings and erect a mixed-use development consisting of a 21-level building containing 3,664m2 of commercial floor space and 68 apartments with three levels of basement parking for 61 cars, on lots 1A, 2A, 4A and 5A DP 244474, and lot 1 DP 953976, known as Nos 3, 5-7 and 9-11 Ward Street, North Sydney is determined by refusal.

      Dr John Roseth
      Senior Commissioner

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.