Komplete Construction Pty Limited v Council of the City of Sydney

Site and locality

1. The site is located on the corner of Bourke Street, Hill Street and Short Place. It has an area of 543.8 sqm with a frontage to Bourke Street of approximately 21m. The southern part of the site contains a 2-3 storey Federation building. The remainder of the site is vacant but construction approved under the Consent has commenced.
2. Surrounding land uses are mostly residential and commercial which ranges in height from 2 to 11 storeys. Immediately to the north of the site, at 348A Bourke Street, is the former Wesleyan Chapel, which is now known as the Wesley Edward Eagar Lodge (the Lodge).It has a later nine storey addition with extensive roof top plant built behind the Chapel.
3. To the west of the site, on the opposite side of the Bourke Street, is the St Margaret's complex, a mixed use development comprising mainly residential apartments with lower level retail and food premises. The development includes 'The Jasper', which is an 11 storey residential building located immediately opposite the site.
4. To the south of the site, on the opposite side of Hill Street, is the three storey Beresford Hotel (354 Bourke Street). To the east of the site, on the opposite side of Short Place, is a 6 storey commercial building (4 Hill Street).

The Consent (D/2012/1812)

1. The Consent was approved on 24 June 2013 for a seven storey building with ground level retail and 22 residential apartments on levels 1 to 6. The approved development also included excavation for one basement level for 'future retail storage', waste rooms, toilets, bike storage and plant.
2. The Consent retains the existing building on the site, which was formerly on a separate allotment (350 Bourke Street). The FSR of the new building was based on the site area of both lots, which were required by a condition of the Consent to be consolidated into a single lot. The consolidated site is now known as 352 Bourke Street.
3. The original application proposed eight storeys and had a height of 27.8m but was amended during assessment to reduce the height to 24.15m (24.6m to the top of the lift overrun) by the deletion of one storey. The reduction in height was to provide a better transition to lower scale development to the south.
4. The Consent has been modified resulting in a minor increase in FSR to 3.28:1 (1761.6sqm) as calculated under the definition of gross floor area (GFA) in the previous planning controls. The approved GFA has been recalculated in accordance with the definition of GFA under the Sydney Local Environmental Plan 2012 (LEP). Measured in accordance with the LEP definition of GFA, the approved GFA is 1869.1sqm and the approved FSR is 3.43:1.

The Application (D2014/1752)

1. The Application proposes:

• one additional storey containing two x 2 bedroom apartments;
• increase the overall height from RL 79.4 to RL 82.65 (top off parapet) and RL 79.85 to RL 82.9 (top of lift overrun).
• a 450mm increase to the parapet height on Bourke Street, increased from RL 79.4 to RL 79.85, to form balustrades and raised planter beds to the proposed additional apartment on level 7 (8th storey).
• increase the GFA from that approved by 159.6sqm, resulting in a FSR of 3.73:1.

Statutory framework

1. The site is zoned B4 - Mixed Uses under the LEP and the development is permissible with consent. The objectives of the zone, which under cl 2.3(2), the consent authority must have regard to 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.
2. Under cl 4.3 and the Height Map of the LEP, the maximum height of a building is 22m. Under cl 4.4 and the Floor Space Ratio (FSR) Map the maximum FSR is 3.5:1. The proposal exceeds the height and FSR standards and the applicant has submitted written requests to vary the these standards under cl 4.6 of the LEP, which provides: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (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. (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.
3. The site is located in a heritage conservation area (HCA) and in the vicinity of a number of heritage items, including the Former Wesleyan Chapel to the north and the Beresford Hotel to the south. Clause 5.10(4) of the LEP requires that the effect of the proposal on the heritage significance of the HCA must be considered before consent can be granted.
4. Clause 6.21(5) and cl 7.20(2) of the LEP require a competitive design process and DCP (Stage 1 DA), respectively, for buildings over 25m outside Central Sydney. Clause 6.21(6) and cl 7.20(3) provide circumstances in which these requirements may be waived.
5. Sydney Development Control Plan 2012 (DCP) is relevant. The existing building on the site is identified as being contributory on the Buildings Contribution Map of the DCP.
6. Section 3.9 - Heritage provides objectives and provisions, which are relevant to the development, including Heritage conservation area (s 3.9.6), Contributory buildings (s 3.9.7) and Detracting buildings (s 3.9.9). Section 2 of the DCP includes Locality Statements. The site is within the Surry Hills North area of the Surry Hills Locality. The character statement and supporting principles for Surry Hills North in s 2.11.3 relevantly include: ….. Building heights along north-south streets increase to the north, towards Oxford Street. Taller buildings which already exist along the north-south ridgeline are to be maintained as landmarks. These buildings are to remain distinct from the lower scale of their surrounding development. Intact rows of mid to late Victorian and Federation terraces and other contributory buildings are to be retained to conserve the heritage character of the area. Principles (a) Development must achieve and satisfy the outcomes expressed in the character statement and supporting principles. (b) Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes. (c) Maintain significant views to the north along the Crown and Bourke Street corridors, from the ridge. (d) Maintain the character of tall buildings located along the ridge such as the St Margaret's Hospital development. These tall buildings act as landmarks and do not set a precedent for the scale of surrounding development
7. Section 4.2 - Residential Flat, Commercial and Mixed Use Developments applies to the development. Under s 4.2.1 the development is not to exceed six storeys with a four storey street frontage height.
8. State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) applies to the residential component of the approved and proposed development. Under SEPP 65, the Residential Flat Design Code (RFDC) must be considered.

Evidence

1. The Court visited the site and heard from objector of the Jasper. The key concerns were the loss of views to the east to the Football Stadium and Cricket Ground and impacts on daylight and privacy. The Court heard planning and urban design evidence from Mr G Cirillo and Ms K Castellanos, for the applicant, and Ms S Correia, for the council.

Height

1. The maximum height of the development is between 27.74m on Bourke Street and 28.54m (Hill Street/Short Place), which does not comply with the maximum height of 22m under cl 4.3 of the LEP.
2. On Bourke Street the maximum height approved under the Consent is 24.6m which would increase to 27.74m (a 3.14m increase from that approved and 5.74m above the maximum height control of 22m).
3. On Hill Street/Short Place the maximum height approved under the Consent is 24.7m which would increase to 28.54m (a 3.84m increase from that approved and 6.54m above the maximum height control of 22m).
4. Mr Cirillo prepared a written request required under cl 4.6(3) of the LEP seeking to justify the contravention of the height standard (the Request).
5. The Request provides that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) for the following reasons: • The development will not result in any significant material difference in terms of apparent bulk and scale when viewed from Bourke Street, Hill Street, Short Street or Short Lane, • The additional storey will not significantly reduce the level of amenity enjoyed by any surrounding residents by virtue of reduction of solar access or outlook. • ….the proposal provides for a built form outcome with an improved height, bulk and scale relationship with surrounding buildings, which is otherwise generally encouraged by Council's controls. • …. the proposal provides for residential amenity and unit mix outcome which is more consistent with Council's controls than the approved development. • It is submitted that there are no unreasonable amenity impacts on surrounding residents which will arise as a result of the departure particularly with respect to overshadowing or loss of internal amenity.
6. The Request states that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)) because: • The location of the additional storey on the upper level of the subject building has been sited and designed to maximise internal amenity for future residents and to minimise any adverse impact upon the public domain and existing surrounding residents, • There are no demonstrable environmental impacts arising from the additional storey. • …the resultant development will be consistent with the zone and development standard objectives by providing an improved unit mix above the approved development in a location identified by the planning provisions for this form of development and by demonstrating that the breach of the FSR control does not hinder the achievement of the objectives of controlling bulk and scale that is attributable to the maximum height development standard. • Strict compliance with the development standard (Clause 4.3 Maximum Height of Buildings) would require the deletion of the proposed two (2) units which would otherwise provide the opportunity for providing additional housing in a high density location and would … result in the orderly and economic use of the land.
7. Mr Cirillo also considered that the proposal would be consistent with the objectives of the height standard in the LEP. The local context has a diverse streetscape with built forms that range from terrace houses, former industrial and institutional buildings. In particular, the former St Margarets Hospital site and Edgar Eagar Lodge are both significantly higher than the proposal. In his opinion, the additional floor would be appropriate to the condition of the site, will read as a recessive built form in the context of the larger buildings and will fit appropriately within it local context (Objective a). The proposal provides a compatible height transition, which is more subtle than the Consent when viewed in the context of Edgar Eagar Building (Objective b). There are no significant views that will be blocked and consequently the proposal promotes view sharing (Objective c).
8. The view assessment from the public domain and Units 611 and 709 of the Jasper incorrectly depicted the height of the parapet on Bourke Street approved under the Consent at RL79.85 (which was the height of the approved lift motor room). The approved height of the parapet is RL79.40. The experts agree that the approved parapet should be depicted 450mm lower in the view assessment of the approved development. During the hearing, Ms Castellanos prepared an amended view assessment for Unit 709.
9. Ms Castellanos agreed that the proposal was of appropriate height for the condition of the site and its context and that it provided an acceptable transition. She considered that the impact on views from the living area of Unit 611 would be moderate as there would be a reduction in sky view. In her opinion, this was reasonable as the quality of the view will remain largely the same. Ms Castellanos considered that the view impact from Unit 709 would be minor as only a small area of sky view is lost, this unit is further from the development and the significance of the view is low.
10. Ms Correia held the contrary view that the proposal does not satisfy cl 4.6. It does not demonstrate that compliance is unreasonable or unnecessary as a complying development would maintain a transition to the lower scale heritage buildings rather than respond to the height of Edgar Allan Lodge and the Jasper, which are identified as not being consistent with the desired future character sought for the area. Furthermore there are no environmental planning grounds specific to the site, such as topography, which would justify contravening the standard. Any complying development or the Consent would provide additional housing in a well serviced area, close to public transport. The breach of the height control does not result in a better outcome or improvements. In particular, the proposal does not improve the relationship with Edgar Eagar Lodge or improve the appearance of the approved development.
11. In Ms Correia's opinion, the proposal is not consistent with the objectives of the height standard. In particular, increasing the height to better match that of Edgar Eagar Lodge is not appropriate given the existing context with a contributory building on the site and its location in a HCA and with nearby smaller heritage items. As well as the likely future context established by the planning controls (Objective a). The proposal would erode the transition provided between Edgar Eagar Lodge and the contributory building on the site and the heritage item to the south (Objective b). The loss of views to units 611 and 709 would be moderate, as there would be an appreciable loss of sky and increased sense of enclosure, which is unreasonable given that it results from a non-complying development.

Findings

1. In Bates Smart Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1001, Brown C outlines the following assessment framework for a variation under cl 4.6: 39 Clause 4.6 of LEP 2012 imposes four preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), the second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the height standard (cl 4.6(4)(a)(ii)), the third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)) and the fourth precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)). ….. 41 A negative finding for any precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment.
2. No contention was raised about the consistency of the proposal with the objectives of the B4 zone but the parties disagree on whether it will be consistent with the objectives of the height standard (cl 4.6(4)(a)(ii)) and whether the Request adequately addresses the matters required to be demonstrated in cl 4.6(3)(a) and (b).
3. The relevant objectives of the height standard are: (a) to ensure the height of development is appropriate to the condition of the site and its context, (b) to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas, (c) to promote the sharing of views.
4. In Bates Smart at [47] Brown C considered the intent of objective (a) and states: 47. The intent of objective (a) is not particularly clear. The words "condition of the site" or the word "site" are not identified in the Dictionary to LEP 2012 and the written request does not provide any guidance as the height objectives are addressed collectively. Consequently, I have given the words "condition of the site", a broad meaning that includes the physical characteristics of the land that would include slope, any changes to the natural topography, natural features and the like as well as the improvements on the land, including any special features such as the heritage significance of the building, in this case. I have taken "context" to be principally the visual catchment from the site.
5. There are no physical characteristics of the site such as slope that would preclude compliance with the height control. The Consent demonstrates that it is possible to develop the site at a lesser height. The existing context of the site includes the adjoining Edgar Eagar Lodge and the Jasper. The character of the area is varied with smaller terrace dwellings and heritage buildings and larger buildings.
6. The planning controls establish the likely future context for the area. They recognise the existing variety and provide different height and FSR controls to different blocks within the area. Under the current planning controls, the site is within a HCA and the existing building is identified as a contributory building, whereas the addition to the Edgar Eagar Lodge is identified as detracting.
7. The DPC is clear that as detracting, the adjoining building does not represent the existing character and scale of development that the Locality Statement in the DCP seeks to respond to. Rather, the Locality Statement for Surry Hills North aims to maintain existing taller buildings as landmarks which are to remain distinct from the lower scale of their surrounding development. The principles for the locality include: (a)Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes. …. (d) Maintain the character of tall buildings located along the ridge such as the St Margaret's Hospital development. These tall buildings act as landmarks and do not set a precedent for the scale of surrounding development
8. Furthermore, s 4.2.1.1 of the DCP requires a maximum six storey form of development for the site with a four storey street frontage. The development approved under the consent proposes seven storeys for both the overall height and street frontage. It was approved under different planning controls and while the development may be acceptable there is no justification that the additional storey would meet the objective of s 4.2.1.1 to "ensure the height in storeys and street frontage height in storeys reinforces the existing and future neighbourhood character" or its provisions which include: (2)The maximum may only be achieved where it can be demonstrated that the proposed development: (a) reinforces the neighbourhood character; (b) is consistent with the scale and form of surrounding buildings in heritage conservation areas; and (c) does not detract from the character and significance of the existing building. …. (5) Height of buildings and the street frontage height in storeys should not match anomalous tall neighbouring buildings that are inconsistent with the neighbourhood.
9. Other than the adjoining "detracting" addition to Edgar Eagar Lodge, there are no particular conditions of the site or its context that distinguish it from the other land in the area or warrant a further breach of the height standard. The proposal therefore is not consistent with Objective (a) of cl 4.3 of the LEP.
10. The development approved under the Consent seeks to provide a transition between the adjoining Edgar Eagar Lodge and the exiting building on the site and the heritage building on the southern side of Hill Street. The additional storey will not improve this transition, rather it will result in a building that is similar to and more closely matches the height of Edgar Eagar Lodge (not including the stepped plant and services). In doing so it provides less of a "step" between Edgar Eagar Lodge on one side and a greater "step" between the 2-3 storey buildings on the other side. Consequently the additional storey reduces the transition between the two adjoining buildings. From a distance, the additional storey may screen the service floors of Edgar Eagar Lodge however this does not justify the additional height or the "material difference in the bulk and scale of the development when viewed from Bourke Street and Hill Street". The proposal is therefore not consistent with Objective (b) of cl 4.6 of the LEP.
11. There will be a moderate impact on the outlook from Units 611 and 709 (and other units in the Jasper Building), mainly from loss of sky and increased sense of enclosure. While of itself this may not be significant, it adds to the view loss already resulting from the development approved under the Consent, which although approved under different controls, exceeds the height control by about 2.5m. The further increase would not promote view sharing sought by Objective (c) of cl 4.3 of the LEP.
12. The principal justification in the Request for the additional storey is that the two 2 bedroom units will improve the unit mix in the development, will improve the transition to Edgar Eagar Lodge and will provide additional housing in a high density environment. For the above reasons, I do not accept that the proposal improves the transition to Edgar Eagar Lodge. The other reasons are not circumstances particular to this site or this development that demonstrate that compliance with the standard is unreasonable or unnecessary or that there are sufficient environmental planning grounds to justify contravening the development standard. I am therefore not satisfied, as required under cl 4.6(4)(a), that the Request has adequately addressed the matters required to be demonstrated under cl 4.6(3).
13. Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the above reasons, I am not satisfied under cl 4.6(4) and consequently there is no power to grant consent to the development application which does not comply with the height control in cl 4.3 of the LEP and the application must fail.
14. Accordingly, it is not necessary for me to discuss the other matters in dispute between the parties.

Orders 1. The appeal is dismissed. 2. The development application (D/2014/1752) to add one storey with two residential apartments to an approved, but not yet constructed, seven storey mixed use building, at 352 Bourke Street, Surry Hills, is refused. 3. The exhibits, except Exhibit 1, are returned. Annelise Tuor Commissioner of the Court

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