MGT 6 Pty Ltd v The Council of the City of Sydney - [2017] NSWLEC 1211 - NSWLEC 2016 case summary — Zoe

NSWNSWLEC

MGT 6 Pty Ltd v The Council of the City of Sydney

[2017] NSWLEC 1211

Land and Environment Court (NSW)|2016-11-09|Before: Danks Street P, Exhibit J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2016-11-09

Before

Danks Street P, Exhibit J

Catchwords

(2007) 156 LGERA 446

Source

Original judgment source is linked above.

Catchwords

(2007) 156 LGERA 446

Judgment (25 paragraphs)

[1]

Judgment

MARTIN SC: I concur with the decision set out below by Dixon C for the reasons she has given. I also concur with the Orders proposed by Dixon C.
DIXON C: MGT 6 Pty Ltd (the Applicant) appeals against the deemed refusal by the Sydney City Council (Council) of a development application D/216/684 (DA) for infill development including; residential apartments and a retail shop, on land at 10-14 Cooper Street, Surry Hills (the Site).
The appeal has been brought pursuant to s97 (1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) and was filed with the Court on 12 July 2016.
The DA was lodged with the Council on 26 May 2016. Before that happened -on 15 March 2016, the Applicant had sought a pre - DA meeting with the Council staff to discuss the merits of the proposal. At that time, the Council staff indicated they would not meet to discuss a development which contained elements above 25m without a proposal for a Stage 1 DA or a Design Competition (the 25m being referred to as a "trigger point" for a Stage 1 DA or a Design Competition. More will be said of this later in the judgment.) A further effort to arrange a meeting was sought by email by the Applicant on 26 March 2016. The email requested that the Council staff put aside the point of disagreement regarding the Stage 1 DA and Design Competition issue in order to discuss the other aspects of the design. Again, the Council staff declined the invitation to meet unless the proposal was for a Stage 1 DA or the envelope was reduced to less than the 25m trigger. Ultimately, the Applicant made a formal request to the Council, by letter dated 9 June 2016, that it "...deem the requirement for a Stage 1 DA or Design Competition unreasonable or unnecessary for this site" (Exhibit J at Tab C).

[2]

FACTS

The following facts give context to my description of the proposed development and the contentions that follow. They are not controversial.
The Site is located mid-block, along the northern side of Cooper Street, Surry Hills. It straddles three existing allotments, which are legally described as Lots 1, 2 and 3 DP 202044.
The land size is 311.8m2. The Site slopes from a high point of RL 29.80 along the Cooper Street boundary towards a low point of RL 28.48 along the O'Loughlin Street boundary at the northwestern corner of the Site.
The Site, and all properties within the vicinity are zoned B4 Mixed Use under the LEP. The proposed use is permissible with development consent.
The Site is fully developed as are surrounding sites and situated within a dense inner urban area. The current building on the Site comprises a two storey warehouse building spanning all three lots. The existing structure has a parapet height of RL 39.47, and is lower in height than the building to the west at 8 Cooper Street called the Icon Building. Existing access to the site is gained directly from Cooper Street and O'Loughlin Street, with vehicular access gained from O' Loughlin Street.
The Site is not listed as a heritage item under the LEP. However, two listed heritage items are located within the visual catchment of the Site. The first is the locally listed "Evening Star Hotel facade" located on the corner of Cooper Street to the west of the Site. On the other side of Cooper Street is the second listed item, namely the former Prince of Wales Hotel at 33-35 Cooper Street. The Site is separated from the Evening Star Hotel by the 9 storey Icon Apartment building approved in 1997 at 8 Cooper Street.
Under the Sydney Development Control Plan 2012 (the DCP), the Site is located in the Surry Hills Central Locality: cl 2.11.7. Localities are "place -specific and draw on the unique qualities of each neighbourhood and provide an important direction for the development of controls and built form guidelines". The boundary of the Surry Hills Central Locality is located on the western side of the Site and extends to the east. In respect of the Surry Hills Central Locality, Section 2.11.7 of the DCP provides: "the future built form character is to maintain the transition in scale and use, from large footprint warehouse buildings in the west to small lot retail, shop-top and terraces houses in the east".
The Cooper Street frontage is subject to a 3 storey street frontage building height control under cl 4.2.1.1 of the DCP. Currently, almost all of the buildings near the site along Cooper Street comply with this height control, apart from the adjoining property at 8 Cooper Street, which is seen as an anomaly. That site is located outside the Surry Hills Central Locality.
Among the controls imposed by the LEP upon development of the Site, as well as sites in the surrounding area, is a floor space ratio (FSR) control of 4:1 and a maximum height control of 27m or eight storeys. Many sites in the area are yet to be redeveloped including the large vacant site to the north at 1-21 Holt Street, presently used as a car park for workers at the nearby News Corp commercial building located to the east at 61- 81 Kippax Street. The proposed building for the Site relies on northern exposure across the News Corp site for sun access to the proposed residential apartments. That reliance is due to constraints of the Site including the 6m wide O'Loughlin Street and the zero setback of the proposed development.
On the opposite side of Cooper Street, to the south, is a 2/3 storey commercial building (1-31 Cooper Street) and the 8 storey commercial building (327-394 Elizabeth Street), currently occupied by the Australian Council of the Arts, that has a roof top caretakers residential unit.
As noted earlier, adjoining the Site to the west is a 9 storey mixed use development at 8 Cooper Street that comprises the Evening Star Hotel on its south-western corner with residential units above and across the remainder of the site. The residential component of that building separates the Hotel's heritage facade and the Site. Some of the residential units include windows and balconies near to the common boundary with the Site. That development includes a pedestrian through site link that connects Cooper Street and O'Loughlin Street.
Adjoining the Site to the east is a 2 storey commercial development. That site is yet to maximise its development potential. The experts agree that when the adjoining site is fully developed, the building on that site will obscure the lift overrun on the building that is the subject of this appeal standing in Cooper Street.
The DA as first submitted was notified by the Council and 9 written submissions objecting to the proposal were received. These submissions are included in Council's bundle of documents (Exhibit 1). Generally speaking, the objectors are concerned about the following aspects of the development: excessive height; bulk and scale; overshadowing of surrounding residential developments - particularly apartments in 8 Cooper Street; parking impacts and design excellence (SOFC at [19]).
During the Site inspection, conducted for the purposes of the appeal and held at the commencement of the hearing, the Court was invited to inspect a unit within the adjoining Icon residential apartment block. The objector, who resides in that unit, gave oral evidence from her kitchen and living room. She is concerned that the development will block sunlight to her kitchen window and that people standing on the proposed balconies opposite her unit will be able to look into her unit (Exhibit 1 p58). A town planner, engaged by the Owners' Corporation of the Icon apartment block also gave oral evidence during the Site inspection. He addressed the matters raised by the Body Corporate's written objection which in effect reflected the contentions stated in the SOFC and agitated by the Council in the appeal (Exhibit 1 p39).

[3]

The original development proposal

The original application seeks approval of the following development: 1. demolition of the existing commercial premises on the Site 2. construction of a residential apartment development on the site comprising 1. 1 ground level retail tenancy; 2. 19 residential apartments on levels 1-7,including 6 x studio, 6 x 1 bedroom, 6 x 2bedroom and 1x3 bedroom units; a common roof terrace on level 8; 3. 8 car parking spaces on the ground and basement levels that include the use of a car stacker; 4. and basement storage.
At the hearing the Applicant was granted leave to amend its application and rely on amended plans (Exhibits M and P). The Council did not object to this course because it accepts that the amendments improve the design of the building. They were the result of further conferencing between the parties' experts following the Court's site inspection. The experts involved were Ms Clare Swan (town planner for the Applicant), Mr. David Little (town planner for the Council), and Ms Allison Cronin, (urban designer for the Council). Each expert had earlier prepared an individual statement of evidence in respect of the original design and participated in the preparation of the joint report (Exhibit 6).
The changes to the design were explained to the Court in the following terms: 1. At the ground floor level the retail tenancy has been moved to the Cooper Street frontage with a zero setback, and the entry to the residential component has been orientated to the street frontage. 2. The building has been setback 3 metres from the street alignment on the eastern boundary, and the balconies and the internal configuration of some of the units have been amended to accommodate the new setback. 3. There has been a "flipping over" of the shape of the stair core in the centre of the building - so that its perpendicular side is west and its angled side is to the east. The amended design now follows the symmetry of the angled glass line on the adjoining the Icon Building. (I am told that the Council requested this modification to allow the subject development to mediate between the zero setback on the Icon Building and the 3 metre setback anticipated on the adjoining site to the east of the Site - presuming, of course that a 3 metre setback is implemented in that way in any future redevelopment of the property to the east). 4. The cladding (battens) on the first three levels, at the street frontage, have been strengthened to emphasise that street wall, and the cladding at the upper levels on the module to the west of the stair core have been removed to make that element more lightweight. 5. The private rooftop pool (for apartment 701) has been shifted away from the edge of the building to address the safety issues raised by the Council. 6. A lift overrun has been introduced to the rooftop level to provide for equality of access to the public open space and the private area of the roof in place of the stair chair. [T15-23]

[4]

The jurisdictional contention

The earlier design did not have a lift overrun. The introduction of this element means that the building now breaches the maximum height limit of 27m prescribed by cl 4.3 of the LEP. The Applicant has submitted a written request under cl 4.6 to contravene the development standard imposed by the LEP (Exhibit N).
The Applicant's request under cl4.6 of the LEP seeking to justify the contravention of the height standard imposed by cl4.3 must first be determined. Until that determination is made, I do not have jurisdiction to embark upon any merit consideration of the application: Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 at [36]. The determination of that request necessarily requires application of the "Wehbe tests" to the height standard in cl4.3. The provisions of cll 6.21 and 7.20 of the LEP only arise for consideration after the cl4.6 request is determined favourably to the Applicant.
For the reasons later expressed, I am satisfied both that the Applicant's variation request dated 4 November 2016 under cl 4.6 has adequately addressed the matters required by the clause to be addressed and otherwise that the matters required to be considered result in application of the height standard being unreasonable and unnecessary in the circumstances of the present case. Therefore, I am satisfied that consent may be granted under cl 4.6 (2) even though the development would contravene cl4.3 of the LEP. As a consequence, the Court has jurisdiction to determine the proposal on its merits.
The Council also submitted that the proposed development breached the maximum FSR for the Site, contrary to cl 4.4 of the LEP. The Applicant did not make any request under cl 4.6 in respect of that alleged breach. It submitted that, properly understood, the development did not breach cl 4.4.
For reasons later given I accept the Applicant's submission. As a consequence, cl4.4 of the LEP imposes no impediment to the determination of the Applicant's development application on its merits.

[7]

Jurisdiction - Contention 3 -cl 4.6 clause request to contravene the development standard in cl 4.3 of the LEP

As I have already said, the Applicant seeks a variation of the height control (a development standard) imposed by cl 4.3 of the LEP. The clause provides: 4.3 Height of buildings (1) The objectives of this clause are as follows: (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, (d) to ensure appropriate height transitions from Central Sydney and Green Square Town Centre to adjoining areas... (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.
The Height of Buildings Map prescribes a maximum height of 27 m for any building on the Site.
The component of the building proposed for the Site that exceeds the 27m limit is the lift overrun. The principal reason for the introduction of this element through the amended plans is to satisfy contention 5 (10) of the SOFC by providing equality of accessible access to the proposed communal open space and private open space for apartment 702 both located on the roof of the building. The lift is proposed to be doubled sided. Mr. Little, Ms Cronin and Ms Swan all agree that the proposed lift to allow for accessible access to the roof area for apartment 702 and the communal open space is a good planning outcome.
The lift overrun extends to a height of 29.35 m (and low point of 29.15m), constituting a 2.35m departure from the height standard. This involves an 8.7% variation from the standard for a minor portion of the plan section of the building for Site.
The cl4.6 request is dated 4 November 2016 and was prepared by Ms Swan and Chris Ferreira of JBA Urban Planning Consultants Pty Ltd (Exhibit N). The content of that request is framed by reference to the principles advanced in; Wehbe v Pittwater Council; (2007) 156 LGERA 446; [2007] NSWLEC 827; Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248; Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7.
The written request submitted to the Council refers to the objectives of cl 4.6 (a) and (b). It is submitted that variation to the maximum height in the standard is consistent with objective (a) of cl4.6 and that flexibility should be applied in this case because the objectives of the maximum height development standard are achieved notwithstanding the non-compliance with the numerical control in the standard. It is further submitted that the development achieves objective (b) of cl 4.6 because the variation of the control to allow for the inclusion of the lift overrun in this case achieves a better outcome for the development in terms "accessibility of access" to the communal and private open space. Ms Swan states that it was a better development having provided communal open space [T p37.25].
The ways in which each of the objectives is achieved notwithstanding the non-compliance with the height building development standard in cl4.3 areseparately addressed in the written request and are summarised below.

[8]

Objective (a): to ensure the height of development is appropriate to the condition of the site and its context

The written request states that the Site's context is characterised by a wide variation in existing building heights and building form, including direct transitions between multi -storey residential buildings and 2-3 storey buildings. Within a 100m radius of the Site, existing buildings range between two storeys and approximately 10 storeys. It is submitted that there is no homogenous character in the locality whereby a variation to the height control would prevent the achievement of objective (a). In that circumstance the Applicant submits that objective (a) is achieved if the height of the proposed building is compatible and appropriate to the site surrounds.
The submission records that the development is predominately compliant with the 27m height control and the DCP 8 storey control, subject to the minor height variation for the lift overrun on the roof space. Therefore, the height is appropriate to the Site context. The massing of the building is predominately within the maximum building height and this does not result in an overdevelopment of the Site.
It is submitted that the proposal is consistent with the scale of development envisaged for the Site under the current planning controls in the LEP and DCP. It is further contended that the breach of the standard is the direct result of the inclusion of communal open space on the rooftop in response to the Site's dense urban context.
The Apartment Design Guide (ADG), to which effect is given by State Environmental Planning policy No 65 - Design Quality of Residential Apartment Development, recommends that communal open space have a minimum area equal to 25% of the Site. In circumstances where this is unable to be achieved , communal open space should be provided elsewhere such as:

a landscaped roof top terrace
larger balconies or increased private open space apartments
demonstrate good proximity to public open space and facilities and /or provide contributions to public open space.

This clause 4.6 variation is about the provision of access to something which is over and above the circumstances that would have been required under the ADG [T p37:15-20]. This development application for a small Site which is completely built up and in a dense urban environment has sought through this proposal to accommodate communal open space and has addressed all of the design guidance items in the ADG noted above. It has communal open space on the rooftop, larger balconies and private open spaces and is proximate to the public open space in Prince Alfred Park. It is submitted that, in the circumstances, there would be reasonable grounds not to provide open space within the development. However, the development seeks to enhance the amenity of the development by the proposed open space on the rooftop. After a consideration of these matters the Applicant submits that the height breach, limited to the lift overrun, is both appropriate to the condition and context of the Site. It provides significant improvement to the building's response to the unique features of this Site, and the broader local context, by providing equitable access to the communal rooftop open space for all residents and visitors.
For the reasons outlined, the written request states that the proposal, notwithstanding the breach of the standard, achieves objective (a).

[12]

Clause 4.6(3) (a) and (b)

In addressing cl4.6(3) (a) and (b) the written submission states thatcompliance with the maximum height standard is unreasonable orunnecessary in the circumstances of the case because a better planningoutcome for the Site as a whole and the community more generally can be achieved as a result of the non-compliance. Not only will the communal open roof space provide neighbouring buildings with a green outlook, it will offer residential accommodation and retail space in an integrated proposal that is consistent with the desired future character of the area. The Site constraints which preclude open space elsewhere are overcome and more equitable access is achieved to the communal and private open space by the lift servicing this area. Without the lift overrun and the breach of the standard the communal open space would need to be accessed by a chair lift (and stair) which is less equitable access to the area. Maintaining the standard would result in a sub- optimal outcome for all residents, with a reduction in the amount and type of communal open space provided in the development.
The written request states that the element of the building above the height limit has a small footprint and is significantly setback from the property boundaries. Therefore, it will only be perceived from limited locations, if at all, without offence. In any event, it will be perceived against a dense background of urban development offering a range of forms and building elements.
On balance, maintaining the standard in this case would result in a poorer amenity outcome for future residents and visitors to the Site. It is therefore unreasonable and unnecessary to require strict compliance with the standard in this case and there are sufficient environmental planning reasons identified to justify contravening the development standard (in addition to those detailed as at [42]) - the site specific constraints and the provision of high amenity communal open space for the residents into the future consistent with the ADG and the provision of accessibility.

[13]

Clause 4.6(4) (a) (i) and (ii)

For the reasons summarised above, which I accept, I am satisfied that the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3). Therefore, cl 4.6(4) (a) (i) is addressed.
With respect to cl 4.6(4) (a) (ii) the written request states that the proposed development is not only consistent with the objectives of the particular standard in cl4.3 but entirely consistent with the objectives of the B4 zone in which the development is proposed to be carried out because it:

Provides a mixture of compatible land uses including residential apartments and retail;
Integrates residential and retail uses in a highly accessible location that is close to major public transport and cycling infrastructure; and
The development will support the viability of the surrounding area by contributing additional patronage of local shops, and will not undermine the viability of nearby centres given the limited retail space proposed.

For those reasons it is submitted that the variation proposed to the numerical maximum building height control is consistent with the zone objectives and therefore in the public interest. Maintaining and enforcing the development standard in this case would unreasonably prevent the orderly and economic development of the underutilized Site and would unnecessarily encumber the various community benefits this development brings:

a new development which is compatible with the desired future character of the locality;
a new development offering high quality design and improvements to the streetscape;
the provision of construction jobs and ongoing employment opportunities through the proposed retail tenancy.

Noncompliance with the standard does not raise any matter of State or regional planning significance.
Mr. Little does not support the Applicant's cl4.6 written request to contravene the standard in cl4.3. He is concerned that a person standing at the eastern end of Cooper Street (until such time as the site to the east is redeveloped) may perceive the lift overrun [T p55:45; p58:10-15]. He is also critical of the fact that the development has not gone through a competitive design process and on that basis alone cannot support the cl4.6 request [T 55: 35-40]. That said, Mr. Little accepts that in the past the Council has supported such a breach as one of the bases for exemption from the competition design process and the DCP requirement (the Rothschild Avenue development) [T 57 27-45]; (Exhibit 6 p 13, [26])
Ms Cronin the urban designer in the case is of the opinion that the proposal, despite the breach of the height, is better because of lift access to this communal open space [T33; 25- 35]. Ms Swan agrees. I accept the evidence of Ms Cronin and Ms Swan over that of Mr. Little that this element provides better residential amenity for the residents and their visitors in accord with the ADG. Mr. Little's concern that this element will be perceived from Cooper Street - until the redevelopment of the site to the east is not a reason in my opinion to refuse this development. Nor is his concern that the development has not gone through the design competition process - such a requirement for process sake is not a basis to refuse this development where the breach of the standard still achieves the objectives of cl4.3 and the zone in which the development will be located.
In my assessment the Applicant's written request satisfactorily demonstrates that compliance with the fixed control in the standard is unreasonable or unnecessary in this case pursuant to the first test in Wehbe. Notwithstanding the minor variation to the height control standard in cl4.3 the development achieves the objectives of the standard and the zone. In that circumstance the variation to the development standard is justified because strict compliance with the numerical control in the standard is unreasonable and unnecessary; Wehbe at [43]. The written request demonstrates that the proposed development will deliver a better outcome for the community and the future residents of the development. It results in a high quality development that positively contributes to the area. For the reasons set out in the written request, which I accept, the development should be approved with the variation as proposed with the flexibility allowed under cl 4.6 of the LEP.

[15]

Contention 4: gross floor area

The site is subject to a maximum FSR of 4:1 under cl4.4 of the LEP (see FSR Map). The clause states: 4.4 Floor space ratio (1) The objectives of this clause are as follows: (a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future, (b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic, (c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure, (d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality. (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.
The definition of GFA in the dictionary of LEP 2012 is as follows: gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes: (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes: (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement: (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consentauthority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above.
The planning experts disagreed about the application of the definition of GFA in LEP 2012 to the proposal.
The Council contends on the evidence of Mr. Little that the Applicant has calculated the gross floor area incorrectly, and that the proposed development does not comply with the FSR controls that apply to the Site.
In summary, Mr. Little believes that the "... area of the floor that is between the stairs and the lift' [T 49:35-37], and the lobby space at the ground floor, should be included in the GFA calculation because these spaces operate as internal space. They provide access from the lift to each of the units after the people that have walked into the building enter the building. They are enclosed spaces behind the open battens "in the sense the same way that a cage encloses something" [T51: 35]. His final calculation for "the new FSR including the lobby and horizontal circulation spaces is 4.46:1 [T54:45] irrespective of glass or not [T 55:20]. That said, Mr. Little conceded that the horizontal circulation spaces on the upper levels did not increase the FSR over 4:4:1 if the 10% bonus was applied although he did not accept that the 10% bonus FSR was available in the absence of a design competition.
According to Mr. Little the proposed design has been carried out to try and circumvent the FSR controls. He believes that the extra FSR around the stairs and foyer adds to the bulk of the building and the density of the development [T 51:5]. According to Mr. Little "the communal circulation area on each level is surrounded by 3 walls shared with either the residential units or the lift. The majority of the remaining southern side of the space is enclosed by the staircase and the proposed "Composite Timber Batten" cladding. The glassing on the southern façade is the external wall of the building, as it provides a barrier between the outside and the internal stairs and horizontal circulation space on each level. The Battens are vertical structures that define the exterior of the building and the building envelope" (Exhibit 6).
In the absence of a cl4.6 request for variation of the FSR standard Mr. Little said that the proposal cannot be supported. Despite his evidence, Mr. Little conceded that there was a paradox in his evidence. On the one hand he requires the removal of the glass around the battens (to avoid the creation of a wall) yet is critical of the resulting amenity from these areas being open to the weather [T51:15-50].
In the end the Applicant decided to remove the glass surround to the battens in the Foyer to overcome Mr. Little's concern despite the fact that he maintained his objection.
Ms Swan's evidence is that the floor area of the proposed landings and foyer does not constitute GFA as defined in the LEP because the ends of each of the landings and foyer will be exposed and open to the elements. Therefore, they cannot be included in calculations of internal floor space as they do not constitute external weatherproof walls. She has relied on the Court's reasoning in GGD Danks Street P/L and CR Danks Street P/L v Council of the City of Sydney [2015] NSWLEC at [31] to support her expert assessment. In that case the Commissioner formed the view that the corridor in question did not form part of the GFA as it was contained on either side by the external walls of the units on either side of the corridor. The Commissioner determined that the external face of the wall cannot be characterised as an internal face because an external wall has a specific function that distinguishes it, that being, weatherproofing. It was said that, the definition of GFA must refer to the interior surface of the wall that forms the facade or exterior of a dwelling, being the wall that weatherproofs the interior space, and cannot refer to the exterior surface of the outer wall at [36]. In circumstances where the corridor would be subject to rain along the gap, the walls containing the corridor were considered to be external walls, and therefore not included as internal floor space for the purpose of GFA and the calculation of FSR.
In an effort to address the "wall issue" the Applicant ultimately offered to remove the glass from around the battens and at all levels from one and above the landing adjacent to the lift to reduce the height of the battens from floor to balustrade height (T 88: 12-20].

[17]

Consideration - Contentions 1 and 2

The following provisions of LEP 2012 are relevant: Clause 6.21 provides: 6.21 Design excellence (1) The objective of this clause is to deliver the highest standard of architectural, urban and landscape design. (2) This clause applies to development involving the erection of a new building or external alterations to an existing building on land to which this Plan applies. (3) Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence. (4) In considering whether development to which this clause 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. (5) Development consent must not be granted to the following development to which this clause applies unless a competitive design process has been held in relation to the proposed development: (a) development in respect of a building that has, or will have, a height above ground level (existing) greater than: (i) 55 metres on land in Central Sydney, or (ii) 25 metres on any other land, (b) development having a capital investment value of more than $100,000,000, (c) development in respect of which a development control plan is required to be prepared under clause 7.20, (d) development for which the applicant has chosen such a process. (6) A competitive design process is not required under subclause (5) if the consent authority is satisfied that such a process would be unreasonable or unnecessary in the circumstances or that the development: (a) involves only alterations or additions to an existing building, and (b) does not significantly increase the height or gross floor area of the building, and (c) does not have significant adverse impacts on adjoining buildings and the public domain, and (d) does not significantly alter any aspect of the building when viewed from public places. (7) A building demonstrating design excellence: (a) may have a building height that exceeds the maximum height shown for the land on the Height of Buildings Map by an amount, to be determined by the consent authority, of up to 10% of the amount shown on the map, or (b) is eligible for an amount of additional floor space, to be determined by the consent authority, of up to 10% of: (i) the amount permitted as a result of the floor space ratio shown for the land on the Floor Space Ratio Map, and (ii) any accommodation floor space or community infrastructure floor space for which the building is eligible under Division 1 or 2. (8) Nothing in this clause permits a consent authority to grant development consent to the following development: (a) development that would result in any building on land projecting higher than any sun access plane that is taken to extend over that land by operation of Division 3, or (b) development that results in any building causing additional overshadowing of a kind specified in Division 3, or (c) development that results in any building on land in Area 1 or Area 2 on the Height of Buildings Map having a height greater than the height of the building that was on the land at the commencement of this Plan. (9) In this clause: building demonstrating design excellence means a building where the design of the building (or the design of an external alteration to the building) is the winner of a competitive design process and the consent authority is satisfied that the building or alteration exhibits design excellence. capital investment value has the same meaning as in the Environmental Planning and Assessment Regulation 2000. competitive design process means an architectural design competition, or the preparation of design alternatives on a competitive basis, carried out in accordance with the City of Sydney Competitive Design Policy. Clause 7.20 provides: 7.20 Development requiring or authorising preparation of a development control plan (1) This clause applies to any of the following development: (a) development for the purposes of a new building, (b) development that increases the gross floor area of an existing building. (2) Development consent must not be granted to development to which this clause applies on the following land unless a development control plan that provides for the matters in subclause (4) has been prepared for the land: (a) land in Central Sydney, if the site area for the development is more than 1,500 square metres or if the development will result in a building with a height greater than 55 metres above ground level (existing), (b) land (other than land in Central Sydney, in Zone B6 Enterprise Corridor or in Zone IN1 General Industrial), if the site area for the development is more than 5,000 square metres or if the development will result in a building with a height greater than 25 metres above ground level (existing), (c) land in Zone B6 Enterprise Corridor, if the site area for the development is more than 5,000 square metres and the development is primarily for the purposes of commercial premises, (d) land in Zone B7 Business Park, if the development is for the purposes of a residential flat building or a mixed use development that contains shop top housing (proposed to be used for the purposes of affordable housing in accordance with clause 7.13A) and the consent authority considers that the development may have a significant adverse impact on non-residential uses in, or in the vicinity of, that zone. (3) A development control plan is not required to be prepared if the consent authority is satisfied that such a plan would be unreasonable or unnecessary in the circumstances or that the development: (a) involves only alterations or additions to an existing building, and (b) does not significantly increase the height or gross floor area of the building, and (c) does not have significant adverse impacts on adjoining buildings or the public domain, and (d) does not significantly alter any aspect of the building when viewed from public places. (3A) A development control plan may be prepared for land in Zone B7 Business Park that is proposed to be developed for the purposes of a residential flat building or a mixed use development that contains shop top housing (proposed to be used for the purposes of affordable housing in accordance with clause 7.13A), whether or not such a plan is required under this clause to be prepared for the land. (4) The development control plan must provide for all of the following: (a) requirements as to the form and external appearance of proposed development so as to improve the quality and amenity of the public domain, (b) requirements to minimise the detrimental impact of proposed development on view corridors, (c) how 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 interface at ground level between the building and the public domain, (xiii) the excellence and integration of landscape design, (xiv) the incorporation of high quality public art into the fabric of buildings in the public domain or in other areas to which the public has access.
It is a fact that the proposed development is for a new building outside Central Sydney with a proposed height in excess of 25m. Therefore, the preconditions for development consent set out in cl6.21 and cl7.20 of the LEP are engaged.
Despite that, the Applicant has applied for a waiver of the requirement for a site specific DCP or a Stage 1 DA for the Site and the competitive design process on the basis that these requirements are unreasonable and unnecessary in the circumstances. Relying on the evidence of Ms Swan it contends that the preparation of a site specific DCP or alternatively the lodgment and determination of a Stage 1DA are not the only methods of establishing the appropriate parameters for the future redevelopment of the Site or ensuring the development achieves design excellence. Rather, they can be established through a detailed DA process involving input from the consent authority particularly where the building proposed is not excessive.
The Council, despite acknowledging the discretion within the provisions has steadfastly insisted upon compliance with the provisions in this case. As outlined earlier, since receipt of the DA the Council has avoided consultation about the design and required the preparation of a site specific DCP or Stage 1 DA under cl 7.20 - to establish the appropriate parameters for the future redevelopment of the Site, and following approval of a site specific DCP a competitive design process under cl 6.21. In advocating the Council's position, Mr. Little in both his sworn oral testimony and written evidence has maintained the view that clls 6.21 and 7.20 must be applied consistently to all developments that breach the height trigger. To do otherwise undermines the controls.
According to Mr. Little there are 88 sites located outside of Central Sydney area with a maximum building height of 27m under cl4.3 of the LEP, and of these sites 56 surround the subject site within a 150m radius. In this instance he believes a waiving of these requirements would particularly undermine the controls for future redevelopment on the three neighbouring sites - which share the same height and FSR controls, and are yet to be redeveloped (Exhibit 6 p8 [13]). While he accepts that each proposal should be assessed on its own merits and that the design before the Court is one that could have come out of the design competition process he does not accept that the amended proposal exhibits "design excellence" without going through the processes under the clauses.
The experts have discussed the relevant provisions together in the joint report because they believe that they are interrelated (Exhibit 6 p5). Although, Ms Cronin has not engaged in that discussion on the basis that the provisions raise planning matters and her expertise is urban design. She has left it to Mr Little to comment on. That said, it is important to record that her criticisms in the joint report about the original proposal have been resolved entirely by the amended plans. Ms Cronin is satisfied that from an urban design perspective that the amended proposal meets the "intensive control and its satisfactory from an urban design perspective" [T33:20 -35].

[18]

Summary of Mr. Little's evidence

I do not propose to repeat Mr. Little's expert opinions in the joint report which support his position. Although I have of course considered them. They were expanded upon and tested in cross examination (having regard to the amended proposal) and his responses were informative. Mr Little told me that the preparation of a site specific DCP and Stage I process under cl7.21 would look at the future development likely to occur on neighbouring sites and the greater area and this would inform the building envelope that is approved under Stage 1 [T58: 20-45]. As this has not happened he is critical of the fact that the actual indicative envelope supplied has a large proportion of built form located at the southeastern corner of the Site. In his opinion this element has the potential to have a negative impact on the site to the east at 16 Cooper Street complying with solar access requirements. He is also concerned about the impacts on the redevelopment of the vacant carpark site to the north of the Site [T59 -60]. Despite this sworn evidence, Mr. Little conceded that the building envelope for the subject Site is established by the existing controls, namely; the 27m overall height control. And, but for the lift overrun, the development complies with that control. As far as the current DCP is concerned he agreed that it prescribes an 8 storey height street wall control on O'Loughlin Street. In the circumstances, he accepted that if the Applicant wanted to comply with the controls; the maximum 27 m height and zero setback for 8 storeys on O'Louglin Street, insofar as the DCP process is concerned there is not a lot that can be done in the formulation of the envelope insofar as it presents itself to O'Loughlin Street [T59,:40-45]. Put simply, he agreed that there was very little opportunity to move built form around on this Site and still comply with the controls. Mr. Little accepted, in respect of the Holt Street car park site that there is opportunity on this larger site to consider where the built form can go to avoid impact on other sites including the residents of the Icon.
In my assessment, it is fair to conclude from a consideration of Mr. Little's final oral evidence to the Court that he accepts that this is a small tight development envelope and a site specific DCP would be unlikely to generate a different development envelope under the existing controls - it does not have the same development opportunities as the Holt Street car park site.

[19]

Summary of Ms Swan's evidence

Ms Swan has addressed in the joint report and her oral evidence the matters in cl 6.21(4) (a) to (d) and specifically whether the proposal meets the objective of the clause "to deliver the highest standard of architectural, urban and landscape design": cl6.21 (1). Her evidence is that the current design has been arrived at through a detailed architectural analysis at the design development stage which has considered all provisions of Clause 3.3.8 of the DCP. Various options were considered for the design of the development. Koichi Takada Architects (KTA) considered the matters outlined in Exhibit 6, p7 paragraph 3(a) to (d) namely: a series of apartment layouts, a central lift core toward Cooper Street to enable natural light and ventilation, façade screen protecting the residents from cross viewing, setback to the north west boundary driven by the proximity of the neighbouring building (Icon Apartment). To protect existing openings and outlook.
In her assessment the proposed development exhibits design excellence for the following reasons:

KTA are quality architects with an international reputation for high quality design of residential apartments and have incorporated a high standard of architectural design, materials and detailing appropriate to the building type and location - through use of high quality cladding and materials and strong vertical elements which break up the mass and which emphasise the articulation of the building to the Street and a design which responses sympathetically to the Site's context and position that transitions from lower scale precinct to higher density its surrounds, and the heritage items proximate in the vicinity- subclause (4)(a) .
The form and external appearance of the proposed development will improve the quality and amenity of the public domain by offering a development that is a fine grain building that responds to the Site's context and position at the transition from the lower scale eastern areas of Surry Hills central precinct to the higher density Elizabeth Street corridor and delivers a high quality aesthetic contributing to the quality of the architecture and urban form throughout Surry Hills. Ms Swan is of the opinion that the amended proposal represents a significant improvement to the relationship between the development on the site and the streetscape by offering generous landscaping to the southern façade -subclause (4) (b).
The proposal will not detrimentally impact on view corridors (refer to Ms Swan's evidence in respect of this issue in the cl4.6 written request discussed earlier) - subclause (4) (c).
The proposal addresses the following matters: 1. The suitability of the land for the development. The Site is zoned for the mixed use development and is located on land which is suitable for residential development in a mixed use context given its dense inner city and residential context, close to public transport and services. The controls support a development of the scale proposed - subclause (4) (d) (i). 2. The existing and proposed uses and use mix. The proposal seeks to redevelop the Site for a mixed use development incorporating a retail use and residential use, which are sympathetic uses and have been designed to ensure they are complementary within the building and surrounds. The proposed use and mix of dwellings will improve surveillance and activity in the street and support a use of the site whose intensity is more appropriate to the nature of the location - subclause (4) (d) (ii). 3. Any heritage issues and streetscape constraint. The proposal has been designed to minimize any impacts on the heritage façade of the Evening Star Hotel located on the corner of Elizabeth and Cooper Street. The amended design now responds to the horizontal and vertical patterns present in existing elements of the Cooper Streetscape while managing the design requirements for a modern residential apartment building - subclause (4) (d) (iii). 4. The proposal does not involve a tower component and therefore does not result in any relationship impacts to neighbouring buildings form an interface perspective. The proposal as amended subject to the agreed conditions provides building separation and setbacks that maintain the visual privacy of the existing neighbours and future residents - subclause (4) (d) (iv). 5. The bulk, massing and modulation of the building is appropriate for the Site. The proposal incorporates articulated design with vertical and horizontal modulations to reduce building mass and to integrate with the desired future character of the streetscape (DCP). The proposal modulates the building form to provide a fine grain presentation to the street to reduce building massing and transitions from warehouse development in the street to emerging residential buildings in the area- subclause (4) (d)(v). 6. Street frontage heights. The amended proposal as detailed in [21] above provides a street frontage height which accommodates the DCP storey control to Cooper Street and now offers an appropriate transition from the Icon apartment block to the development at the east. It is supported by all experts - subclause (4) (d) (vi). 7. The development provides a design that meets the requirements of its function, whist utilizing sustainable design. The proposal will not detrimentally affect neighbouring sites, and will improve visual and acoustic privacy for neighbouring residents, and will not create adverse noise, wind and reflectivity impacts. The proposal minimizes environmental impacts on adjoining dwellings such as visual privacy and maximizes the amenity of the proposed dwellings which will receive in excess of the ADG requirements for cross flow ventilation and apartment sizes and communal and private open space. - subclause (4) (d) (vii). 8. The proposal has been designed to achieve the principles of ecologically sustainable development through building design and incorporation of measure to reduce water and energy consumption whilst promoting non car modes of travel - subclause (4) (d) (viii). 9. The proposal provides car parking below the maximum requirement and provides adequate bike storage to support cycling by residents - subclause (4) (d) (ix). 10. The proposal provides for an improvement in the building's contribution to the public domain and streetscape by providing an active and articulated southern façade with substantive vegetation and greening of the building- subclause (4) (d) (x). 11. The impact on any special character area. The proposal is consistent with the built from envisaged for the Site within the Surry Hills Central character area by supporting the character of the locality by maintaining the transition in scale from large footprint warehouse buildings in the west to small lot retail and housing in the east; it responds to and complements heritage items and contributory buildings with a sympathetic height design, streetscape presentation and front setback; the proposal maintains the transition in built from scale , from taller buildings in the west to consistent two storey areas in the east; it maintains and responds to intact low scale terrace areas; it provides a significant landscape concept throughout the development , contributing to overall greening of the locality ;the proposal provides an innovative and creative architectural response to the site , achieving design excellence and setting the mark for architectural excellence in Cooper Street - subclause (4)(d)(xi). 12. The proposal (subject to the landscaping condition at the foyer to address security) achieves appropriate interfaces at ground level between the building and the public domain by maximizing visual site lines between internal and external areas and providing good passive surveillance from south facing and north facing dwellings.- subclause (4) (d) (xii). 13. The proposal provides an excellent integration of landscape design into the building by providing new landscaping on site that is fully developed and through integration of fixed planter boxes to integrate landscaping into vertical elements of the northern and southern facades - subclause (4) (d) (xiii). (Exhibit 6 pp19 -23 - Ms Swan)

For the reasons outlined above Ms Swan is of the opinion that the proposal meets the overall intent of cl 6.21 of the LEP as it addresses each of the requirement in subclause (4) (a) to (d). In that circumstance, Ms Swan is of the opinion that the proposed development exhibits design excellence. In her expert opinion a design competition is only one way of achieving design excellence in order to achieve the objective of the clause.

[20]

Finding Clause 6.21

Clause 6.21 (3) is a precondition to consent. It requires the Court to form an opinion, before granting development consent, as to whether "the proposed development exhibits design excellence". This phrase is not defined and is to be differentiated from the phrase "building demonstrating design excellence" that is defined in subclause (9). In considering whether the proposed development exhibits design excellence the clause requires a consideration of the matters in subclause (4) in order to achieve the objective of the clause being delivery of "the highest standard of architectural, urban and landscape design".
In circumstances where I have formed the requisite opinion under subclause (3) that the proposed development exhibits design excellence it follows that it is open to the Court to be satisfied that by operation of subclause (6), the competitive design process otherwise required by subclause (5) is unreasonable or unnecessary.
The discretion in cl6.21 necessarily invites an assessment of each case on its own facts.
Mr. Little had difficulty conceding the fact that the discretion available under subclause 6 could be utilized under any circumstances because he believes that that the exercise of that discretion undermines the controls [T 43: 10-43, 44: 1-50; 45: 5-15]. His interpretation however, is difficult to reconcile with the fact that the Council has in fact exercised such discretion recently in the Rothchild case in respect of a lift overrun in breach of the 25m trigger (Exhibit 6 tab 2 at [37]). And, while Mr. Little in his oral and written evidence sought to distinguish that case on its facts, his evidence does not withstand close scrutiny. To deny the existence of the discretion available under cl 6.21 (6) means that the subclause has no work to do. The discretion in subclause (6) must have work to do in appropriate circumstances, and the case at hand in my assessment provides such an opportunity.
I prefer Ms Swan's interpretation and application of the provisions in cl6.21 as outlined in the joint report and tested in Court. The minor elements of the development that exceed the height control of 25m no not detract from the excellence of the design but as Ms Cronin states in her oral evidence make for an improved development. She supports the inclusion of the lift overrun to provide accessible access to the roof. The evidence supports finding that this is a small site in a built up urban environment with constraints. This was evident at the view. Ms Swan believes that the design process and architectural variety anticipated by cl6.21 is aimed at larger sites, like the vacant car park site to the north where the design completion aims for the 10 % bonus and FSR can be distributed over the Site as required. That is not this Site. I accept her expert evidence based on my assessment of all of the evidence including the view.
When pressed in cross examination Mr. Little accepted that compliance with the existing controls provides little opportunity for the distribution of mass on the Site when compared to the vacant site to the north which is a corner block with three frontages. However, this concession did not change Mr. Little's resolve to require a specific DCP for the Site and a design competition because the 25m height trigger had been engaged. The fact that the proposed building sits essentially within the 27 m height limit, complies with the storey and height provisions in the DCP (despite the frontage of the Icon building) , and that Mr. Little's only planning concern with the uppermost part of level 701 is "…that it had not gone through the process" [T p47 at 30].
Ms Cronin told the Court that she has no urban design issue with the amended development. She is satisfied that the urban design issues which were raised previously have been addressed and from an urban design perspective and described the amended proposal as "…an improvement of the previous scheme It meets an intensive control and it's satisfactory from an urban design perspective". In the absence of any issue about urban design and for the reasons articulated by Ms Swan in her oral and written evidence addressing the matters in subclause (4), (as summarized at [82] and her evidence about the cl4.6 matters at [32] - [60] above) is sufficient for me to be satisfied that the proposed development before the Court, to use the words of cl 6.21 of the LEP exhibits design excellence.
I am of the opinion that the proposed development is of a high standard of architectural design, materials and detailing appropriate to the building type and location. Koichi Takada Architects is an international architectural practice which has a track record of delivering high quality residential buildings both in Sydney and internationally. I accept Ms Swan's assessment that the selection of material and its detailing is reflective of its location and enables the Site to be visually integrated within its urban precinct. The proposed design incorporates detailed use of modulation and articulation, linear form, colors and tones, and the high quality of materials used means that the development will be characteristic of a building with high architectural quality. The proposed composite timber cladding is an aluminum product with a timber look applied to it. It has been used on projects in Skye North Sydney and Bower Street, Manly. The material is durable. I accept Ms Swan's assessment that the macro scale of the building's form, its sophisticated simplicity in delivering a fine grain building that responds to the Site's context and position as the transition from the lower scale eastern areas of Surry hills Central precinct to the higher density Elizabeth street corridor seeks to deliver a high quality aesthetic that contributes to the quality of the architecture and urban form throughout Surry Hills.
Given the wording of cl 6.21 I cannot accept Mr. Little's expert opinion that there is a community expectation that a competitive design process will be undertaken in circumstances when the objective of the clause is otherwise achieved. Such a requirement is both unreasonable and unnecessary: Wehbe.
The proposed development in my opinion does exhibit design excellence. In that circumstance, the precondition in cl6.21 (3) for development consent is achieved. Having formed that opinion I am satisfied that a competition design process is not required under subclause 5 because such a process would be unreasonable or unnecessary in the circumstances.

[21]

Finding Clause 7.20

Clause 7.20 (2) of the LEP operates as a precondition of power. That said, sub clause (3) permits the Court to decide that a site specific DCP or Stage 1 DA is not required either because it is satisfied that the preparation of such a plan is unreasonable and unnecessary in the circumstances, or because the consent authority is satisfied that the development meets all the requirements of cl 7.20(3) (a) - (d) of the LEP. The latter does not apply in this case
Unlike cl6.21 this clause does not have an expressed objective. So, in order to determine whether the requirement for a DCP would be unreasonable or unnecessary in the circumstances it is necessary to discern the underlying objective.
It would seems to me that the underlying objective can be discerned from the provisions of cl7.20 (4). The subclause identifies matters for which a development control plan must provide. Importantly, paragraphs (a) and (b) are in substance the same as paragraphs (b) and (c) of cl6.21 the design excellence provisions. Paragraph (c) of cl7.20 (4) replicates the matters identified in cl 6.21(d) with the exception of paragraph (xiv). All of the matters to which the DCP would be directed have earlier been considered when addressing cl6.21. As I have found that when addressing the latter clause that the design of the proposed building meets those requirements that same reasoning supports my conclusion under cl7.20(3) that the preparation of a DCP for this Site is, in the circumstances both unreasonable and unnecessary. There is no necessity to repeat the reasoning that I have applied to the comparable provisions of cl 6.21.
In so concluding, I do not overlook the provisions of cl 7.20 (4)(xiv). No part of the proposed building is itself in the public domain and there are no areas to which the public have a right of access. That said, the Applicant accepts that some form of high quality public art may be included within the foyer of the building, and will accept a condition to that effect. I also add that although (xiv) is directed to the incorporation of high quality art into the fabric of the building "in the public domain" evidence to which I have otherwise referred has identified how the design of the building, particularly as it presents to Cooper Street, improves the public domain.

MGT 6 Pty Ltd v The Council of the City of Sydney

At a glance

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Judgment (25 paragraphs)

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