Hosking Munro Pty Ltd v The Council of the City of Sydney - [2024] NSWLEC 1040 - NSWLEC 2023 case summary — Zoe

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Hosking Munro Pty Ltd v The Council of the City of Sydney

[2024] NSWLEC 1040

Land and Environment Court (NSW)|2023-11-13

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Land and Environment Court (NSW)

Decision date

2023-11-13

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Original judgment source is linked above.

Judgment (35 paragraphs)

[1]

Judgment

COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Hosking Munro Pty Ltd (Applicant) against the actual refusal by The Council of the City of Sydney (the Respondent) of Development Application D/2022/127.
The works subject to this application are proposed on Level 3 of the basement carparking area, as well as Level 11, of the Rydges World Square Hotel. The works include a proposal to infill an existing void between the hotel restaurant and lounge bar area and above the pedestrian through-site link. Both areas are located in Lots contained within 391-395 Pitt Street, Sydney.
In summary, for the reasons outlined in this judgment, I have found that the proposed works meet the relevant planning criteria and warrant the granting of development consent.

[2]

The Proposal

The Development Application is seeking Development Consent for the alterations and additions to the commercial development, that includes the following specific work: Basement - Level 3 1. Conversion of six car parking spaces and associated driveway into a lock up storage area with gate. The carparking spaces and associated driveway is equivalent to 155.33 square metres of basement car parking. Podium Level - Level 11 1. Infill of the existing void over the building's through-site link, known as the Hordern Arcade, to create an outdoor seating area for the Rydges Hotel lounge bar. 2. Alterations to the existing Level 11 to install two bi-fold doors to access the proposed outdoor terrace. 3. Relocation of the external inter-tenancy stair connecting Level 11 and the terrace on Level 12. 4. The proposed outdoor terrace will operate in conjunction with the adjoining restaurant and bar with the same hours of operation as follows: 1. 1.00pm to 12.00am midnight, Monday to Saturday; and 2. 1.00pm to 10.00pm on Sundays.

[5]

The Sydney Local Environmental Plan 2012

The site is located within the B8 Metropolitan Centre zone pursuant to Sydney Local Environmental Plan 2012 (SLEP 2012) . The proposed development, being "tourist and visitor accommodation", is permissible with Development Consent in the zone.
The SLEP 2012 contains a clause, cl 6.21C, which relates to Design Excellence. This clause contains mandatory considerations in regard to design excellence. Clause 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.

[6]

The Sydney Development Control Plan 2012

A summary of the key planning controls under SDCP 2012 are detailed below: 1. Pedestrian and bike network (section 3.1.2) - objective (b) of this section is to: "(b) Ensure the pedestrian and bike network is well designed, safe, well lit, highly accessible and promotes public use." 1. Through-site links (section 3.1.2.2): "3.1.2.2 Through-site links (1) Through-site links are to be provided in the locations shown on the Through-site links map. (2) Through-site links are to be provided on sites: (a) greater than 5,000sqm in area; (b) with parallel street frontages greater than 100m apart, and (c) where the consent authority considers one is needed or desirable. (3) Through-site links are to be an easement on title unless identified in a contributions plan for dedication to Council. (4) Through-site links are to be designed to: (a) generally have a minimum width of 4m, or 6m where bike access is provided, and have a clear height of at least 6m; (b) be direct and accessible to all, have a clear line of sight between public places and be open to the sky as much as is practicable; (c) align with breaks between buildings so that views are extended and there is less sense of enclosure; (d) be easily identified by users and include signage advising of the publicly accessible status of the link and the places to which it connects; (e) be clearly distinguished from vehicle accessways, unless they are purposely designed as shareways; (f) include materials and finishes such as paving materials, tree planting and furniture consistent with adjoining streets and public spaces and be graffiti and vandalism resistant; (g) be clear of obstructions or structures, such as electricity substations, or car park exhaust vents; (h) include landscaping to assist in guiding people along the link while enabling long sightlines; and (i) be fully accessible 24 hours a day. (5) In retail and commercial developments through-site links may be within a building provided they are: (a) between 3m and 6m in width; (b) at ground level and lined with active uses; (c) designed to have access to natural light from skylights in the middle of the link; (d) open at each end or, where air conditioned, provide entry doors that are glazed and comprise a minimum 50% of the width of the entrance; (e) publicly accessible from 6am to 10pm each day; and (f) connecting streets or lanes and have a clear line of sight between entrances."

[7]

The Issues

The Statement of Facts and Contentions (SOFAC) raised contentions relating to owners consent, public amenity, design excellence and insufficient information as grounds to reject the development application. During the proceedings several of the contentions were resolved and are no longer contested. The status of the issues between the parties is summarised below.
Contention 1, which related to owners consent, is no longer pressed by the respondent. The applicant filed amendments to the application, which were accepted, that clarified the land to which the development application related and verified owners consent.
Contention 4, relating to insufficient information, has also been resolved. The lack of clarity around owners consent issue was resolved as described above. The respondent also sought clarity on the proposal to remove car parking from the Level 3 basement. Proposed conditions, ensuring the long-term removal of the car parking spaces, were to ensure that credits for additional floor space were possible through the removal of car parking spaces. Clause 6.5 of SLEP 2012 allows for an increase in allowable floor space based on the area of parking that is removed from the development. The proposal to add floor space at upper levels is within that floor space credit and hence the contention is no longer pressed.
The remaining contentions focus on amenity and design excellence. The issues focus on whether or not it is acceptable to build over a portion of the Hordern Arcade that is currently "open to the sky". The respondent takes the position that the planning controls, as outlined in both the SLEP 2012 and the SDCP 2012, support a more superior design outcome which is to maintain the extent of the area within the arcade that is open to the sky.
In contrast, the applicant takes the position that covering over a portion of the arcade is an acceptable design solution in the context of the immediate locality. The applicant's position is that the development proposal is consistent with the relevant planning framework and warrants the granting of development consent.

[8]

Is the proposed through-site link acceptable?

The parties place different emphasis on both the SLEP 2012 and SDCP 2012 controls in support of their respective positions. The different positions, in part, arise from the classification of the through-site link and therefore what the applicable planning controls are.
Notwithstanding the above, it is common ground that the Hordern Arcade is identified on Sheet 015 of the through-site links map in SDCP 2012 (the Map). The map depicts a variety of through-site links but classifies the Hordern Arcade as an "existing" through-site link. The map does not distinguish between a generic through-site link and a link through a retail/commercial development.
This is in contrast to section 3.1.2.2 of the SDCP 2012 (Through-site links) which sets different criteria for various through-site links. Links that are within a building that is a retail and/or commercial development are considered differently from other through-site links. The SDCP 2012, in section 3.1.2.2(4), sets out generic requirements for through-site links and section 3.1.2.2(5) has more specific criteria if the through-site link is "within" a building.
The relevance in the distinction between these two categorisations goes to the core of the issues that separate the parties. That is, the extent to which the space should be open to the sky, if at all. The general requirement, in section 3.1.2.2(4)(b), is that the link be designed to be direct and accessible to all, have a clear line of sight between public places and be "open to the sky" as much as is practicable.
Section 3.1.2.2(5)(c) says, if the link was considered to be "in" a retail and/or commercial development, that the link can be designed to only have access to natural light from skylights in the middle of the link. Implicit in this outcome is the absence of a void that is open to the sky.
In viewing the plans forming the basis of this appeal, it is evident that the through-site link is within a building that contains both retail and commercial development. Sheet DA 102, which is the Level 11 floor plan, shows the extensive nature of the Rydges Hotel development which covers much of the through-site link below. The use of Level 11 by the hotel development includes restaurant areas, bar areas and function rooms, along with hotel reception. The proposal will be to build over the link with the end result being that the link is surrounded by building at the sides as well as above and below. This will reinforce that the arcade becomes a "link in a building". I also note that the through-site link is provided via ground floor access and within a building that contains significant ground floor retail uses.
The desirable criteria for access to natural light, for a through-site link in a development, is set out in section 3.1.2.2(5)(c): see [11] above. The requirement is that the through-site link be designed to have "access to natural light from skylights in the middle of the link". It is an agreed position by the planning experts that, at the centre of the Hordern Arcade through-site link, there is a circular and uncovered area (of approximately 10m in diameter) providing natural light which is open to the sky.
Based on the evidence provided, I have concluded that this proposal that seeks to cover the western portion of the through-site link, is generally compliant with the SDCP 2012 as it is a link within a building and maintains access to natural light "in the middle of the link". As the proposal meets the more refined requirements of the SDCP 2012 in section 3.1.2.2(5), the more general requirements for through-site links contained in section 3.1.2.2(4), have less utility, if applicable at all.

[9]

Does the Proposal Exhibit Design Excellence?

As required by cl 6.21 of the SLEP 2012, I have had regard to the various aspects of design excellence. This clause has a threshold role in that the proposal must "exhibit design excellence". In forming an opinion as to whether the proposal does exhibit design excellence, the consent authority must have regard to the matters listed in cl 6.21C(2)(d): see [10] above.
The decision, by Horton C, in Mod Urban Pty Ltd v Council of the City of Sydney [2022] NSWLEC 1606, at [59]-[61], sets out an approach to deliberating on the design excellence outcomes, as follows. "59 Those issues set out at cl 6.21(4)(a), (b) and (c) are, in my view, somewhat contingent upon findings with respect to the issues within subcl 6.10(4)(d). For instance, whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved (subcl (4)(a)), cannot be isolated from consideration of the bulk, massing and modulation of buildings at subcl (4)(d)(v) as all are aspects of architectural design. 60 Likewise, whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, being a consideration required by subcl 6.21(4)(b) of the SLEP, is inseparable, in my view, from considering the impact on, and any proposed improvements to, the public domain (cl 6.21(4)(d)(xi)). 61 Furthermore, those matters set out at cl 6.21(4)(a)-(c) are posed in terms of 'whether' the development the subject of the development application achieves certain things whereas those matters set out at cl 6.21(4)(d) are posed in terms of 'how' the proposal addresses certain matters."
It is an approach that is appropriate in respect to this matter and which I have adopted. I have also considered that this is an application to adjust a much larger development, by altering and adding to the development, and that consideration of the matters of design excellence require consideration of the context of the application in respect to the existing building. The application proposed changes to an existing development and, as a result, a large part of the consideration will be how the proposed changes integrate with the existing building as well as its surrounds.
The parties agree that the only contentious areas of delivery on the design excellence outcomes are related to energy efficiency and the impact on the public domain. Nevertheless, I must be satisfied as to the outcomes of cl 6.21C on all aspects if development consent is to be granted.
The parties raise no issues with how the development addresses most of the matters listed in 6.21C (2)(d). The matters of design excellence, which are not in dispute, are as follows: (i) the sustainable use of the land, (ii) the proposed uses and use mix, (iii) heritage and streetscape issues, (iv) the location of the tower (not part of this application) (v) the bulk, massing and modulation of buildings, (vi) pedestrian movement and permeability, (ix) impacts on special areas, (xi) interfaces to ground level public domain, (xiii) landscape design.
I agree that the proposed development, which is for alterations and additions, does not deter from the overall outcomes of the design and use of the existing development. In particular, because the proposed development has materials and design outcomes that integrate the proposal with the existing structure, it will have satisfied the design excellence criteria in the above list and has integrated the massing, scale and modulation of the existing building into the proposal. The interface with ground level public domain remains unchanged, there is little to no change to approved landscape outcomes and the pedestrian permeability outcomes, which support design excellence, are achieved.
The parties differ in what approach should be taken to considering impacts on the "public domain". Clause 6.21C(2)(b) of SLEP 2012 asks "whether the form and external appearance of the proposed development will improve the quality and amenity of the public of the public domain". Subclause 6.21C(2)(d)(x) then asks how the proposed development addresses the impact on, and any improvements to, the public domain.
At par 49 of the Joint Planners Report, Mr Cirillo raises the issue of weather protection. He states that "the enclosure of this specific section of the arcade will augment its public accessibility by providing additional sheltered space, affording users protection during unfavourable weather conditions".
It is evident from the site view, and photos provided in the joint report, that there is little existing protection from rain and other weather elements over the western portion of the through site link. There is also little awning coverage through this section of the link other than small porch covers at the entrance to several premises. It is for these reasons that I agree that the proposal will result in improved amenity outcomes from weather protection.
The parties have different positions as to whether the arcade is "public domain". The applicant makes case that the internal site link is not within the meaning of public domain as applicable to the SLEP (wherein the design excellence clause is activated). The applicant says that the external edges to the World Square site, the streetscape, is the public domain in respect to cl 6.21 of SLEP 2012. The respondent takes a more liberal approach, noting that the SDCP talks about the public domain differently in respect to through-site links.
On the basis that I have found that the amenity of the space is improved, I do not need to clarify whether that area is public domain. This is because if the area is public domain, then I have already found that the amenity of the place is improved and the criteria met. If it is not considered public domain, then the design excellence criteria relating to public domain do not apply to this through site link.
The respondent's expert raised issues relating to sustainability arising form the use of lights in the ceiling of the covered space. I accept the argument of the applicant that, in the context of the overall development, the use of lighting intermittently during daylight hours is not definitive in determining design excellence. Crime prevention criteria would see the arcade lit at various times in any event and the need for lighting outside of daylight hours will remain. The improved amenity arising from covering the space would provide a better outcome than keeping the space open to reduce energy consumption.
It is for the reasons outlined above that I have found that the relevant criteria contained within cl 6.21C have been met and that the proposal exhibits the required level of design excellence.

[25]

The Statement of Facts and Contentions (SOFAC) raised contentions relating to owners consent, public amenity, design excellence and insufficient information as grounds to reject the development application. During the proceedings several of the contentions were resolved and are no longer contested. The status of the issues between the parties is summarised below.
Contention 1, which related to owners consent, is no longer pressed by the respondent. The applicant filed amendments to the application, which were accepted, that clarified the land to which the development application related and verified owners consent.
Contention 4, relating to insufficient information, has also been resolved. The lack of clarity around owners consent issue was resolved as described above. The respondent also sought clarity on the proposal to remove car parking from the Level 3 basement. Proposed conditions, ensuring the long-term removal of the car parking spaces, were to ensure that credits for additional floor space were possible through the removal of car parking spaces. Clause 6.5 of SLEP 2012 allows for an increase in allowable floor space based on the area of parking that is removed from the development. The proposal to add floor space at upper levels is within that floor space credit and hence the contention is no longer pressed.
The remaining contentions focus on amenity and design excellence. The issues focus on whether or not it is acceptable to build over a portion of the Hordern Arcade that is currently "open to the sky". The respondent takes the position that the planning controls, as outlined in both the SLEP 2012 and the SDCP 2012, support a more superior design outcome which is to maintain the extent of the area within the arcade that is open to the sky.
In contrast, the applicant takes the position that covering over a portion of the arcade is an acceptable design solution in the context of the immediate locality. The applicant's position is that the development proposal is consistent with the relevant planning framework and warrants the granting of development consent.

[26]

The parties place different emphasis on both the SLEP 2012 and SDCP 2012 controls in support of their respective positions. The different positions, in part, arise from the classification of the through-site link and therefore what the applicable planning controls are.
Notwithstanding the above, it is common ground that the Hordern Arcade is identified on Sheet 015 of the through-site links map in SDCP 2012 (the Map). The map depicts a variety of through-site links but classifies the Hordern Arcade as an "existing" through-site link. The map does not distinguish between a generic through-site link and a link through a retail/commercial development.
This is in contrast to section 3.1.2.2 of the SDCP 2012 (Through-site links) which sets different criteria for various through-site links. Links that are within a building that is a retail and/or commercial development are considered differently from other through-site links. The SDCP 2012, in section 3.1.2.2(4), sets out generic requirements for through-site links and section 3.1.2.2(5) has more specific criteria if the through-site link is "within" a building.
The relevance in the distinction between these two categorisations goes to the core of the issues that separate the parties. That is, the extent to which the space should be open to the sky, if at all. The general requirement, in section 3.1.2.2(4)(b), is that the link be designed to be direct and accessible to all, have a clear line of sight between public places and be "open to the sky" as much as is practicable.
Section 3.1.2.2(5)(c) says, if the link was considered to be "in" a retail and/or commercial development, that the link can be designed to only have access to natural light from skylights in the middle of the link. Implicit in this outcome is the absence of a void that is open to the sky.
In viewing the plans forming the basis of this appeal, it is evident that the through-site link is within a building that contains both retail and commercial development. Sheet DA 102, which is the Level 11 floor plan, shows the extensive nature of the Rydges Hotel development which covers much of the through-site link below. The use of Level 11 by the hotel development includes restaurant areas, bar areas and function rooms, along with hotel reception. The proposal will be to build over the link with the end result being that the link is surrounded by building at the sides as well as above and below. This will reinforce that the arcade becomes a "link in a building". I also note that the through-site link is provided via ground floor access and within a building that contains significant ground floor retail uses.
The desirable criteria for access to natural light, for a through-site link in a development, is set out in section 3.1.2.2(5)(c): see [11] above. The requirement is that the through-site link be designed to have "access to natural light from skylights in the middle of the link". It is an agreed position by the planning experts that, at the centre of the Hordern Arcade through-site link, there is a circular and uncovered area (of approximately 10m in diameter) providing natural light which is open to the sky.
Based on the evidence provided, I have concluded that this proposal that seeks to cover the western portion of the through-site link, is generally compliant with the SDCP 2012 as it is a link within a building and maintains access to natural light "in the middle of the link". As the proposal meets the more refined requirements of the SDCP 2012 in section 3.1.2.2(5), the more general requirements for through-site links contained in section 3.1.2.2(4), have less utility, if applicable at all.

[31]

I agree that the proposed development, which is for alterations and additions, does not deter from the overall outcomes of the design and use of the existing development. In particular, because the proposed development has materials and design outcomes that integrate the proposal with the existing structure, it will have satisfied the design excellence criteria in the above list and has integrated the massing, scale and modulation of the existing building into the proposal. The interface with ground level public domain remains unchanged, there is little to no change to approved landscape outcomes and the pedestrian permeability outcomes, which support design excellence, are achieved.
The parties differ in what approach should be taken to considering impacts on the "public domain". Clause 6.21C(2)(b) of SLEP 2012 asks "whether the form and external appearance of the proposed development will improve the quality and amenity of the public of the public domain". Subclause 6.21C(2)(d)(x) then asks how the proposed development addresses the impact on, and any improvements to, the public domain.
At par 49 of the Joint Planners Report, Mr Cirillo raises the issue of weather protection. He states that "the enclosure of this specific section of the arcade will augment its public accessibility by providing additional sheltered space, affording users protection during unfavourable weather conditions".
It is evident from the site view, and photos provided in the joint report, that there is little existing protection from rain and other weather elements over the western portion of the through site link. There is also little awning coverage through this section of the link other than small porch covers at the entrance to several premises. It is for these reasons that I agree that the proposal will result in improved amenity outcomes from weather protection.
The parties have different positions as to whether the arcade is "public domain". The applicant makes case that the internal site link is not within the meaning of public domain as applicable to the SLEP (wherein the design excellence clause is activated). The applicant says that the external edges to the World Square site, the streetscape, is the public domain in respect to cl 6.21 of SLEP 2012. The respondent takes a more liberal approach, noting that the SDCP talks about the public domain differently in respect to through-site links.
On the basis that I have found that the amenity of the space is improved, I do not need to clarify whether that area is public domain. This is because if the area is public domain, then I have already found that the amenity of the place is improved and the criteria met. If it is not considered public domain, then the design excellence criteria relating to public domain do not apply to this through site link.
The respondent's expert raised issues relating to sustainability arising form the use of lights in the ceiling of the covered space. I accept the argument of the applicant that, in the context of the overall development, the use of lighting intermittently during daylight hours is not definitive in determining design excellence. Crime prevention criteria would see the arcade lit at various times in any event and the need for lighting outside of daylight hours will remain. The improved amenity arising from covering the space would provide a better outcome than keeping the space open to reduce energy consumption.
It is for the reasons outlined above that I have found that the relevant criteria contained within cl 6.21C have been met and that the proposal exhibits the required level of design excellence.

Hosking Munro Pty Ltd v The Council of the City of Sydney

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