One Forty William Pty Ltd v Council of the City of Sydney

One Forty William Pty Ltd v Council of the City of Sydney - [2019] NSWLEC 1290 - NSWLEC 2019 case summary — Zoe

[6]

Proposal

The proposal has been subject to considerable dialogue between the parties since the original lodgement of the CDA in November 2016. This dialogue continued into the hearing itself, to the point where the applicant sought and was granted leave (without objection from Council) to amend certain of the application's particulars within the hearing itself. This occurred after further joint conferencing and subsequent agreed recommendations from the planning and urban design experts on alternative solutions which were seen to overcome contentions (in accord with para 26 of the Court's Conference of Expert Witnesses Policy).
The concept envelopes and indicative land uses for which consent is sought is best understood from reviewing the final plans themselves (Ex J), as there is some detailing around the particulars, partly as a consequence of efforts to address potential impacts in the work of the experts. But my attempt to describe them briefly here is as follows:

Concept Building Envelope A - a five level building envelope and rooftop, with a two storey podium to Ralph Street (RL 34.32 to the top of the parapet and RL 36.58 to the top of the lift overrun)
Concept Building Envelope B - a six-eight (partial only) level building envelope at 614-618 and 33 Ralph Street, including tower elements at each street front (RL 36.02 to the parapet and RL 38.88 to the top of the lift overrun).
Concept Building Envelope C - a five level building envelope and rooftop, with two storey podium along Botany Road (RL 31.48 to the top of the western most roof top and RL 32.13 to the top of the lift overrun)

Concept Building Envelopes A and C involve and incorporate heritage-listed Buildings A and B described above. As will be seen below, this is a key issue for consideration in this determination.
The "indicative land uses" within the envelopes essentially comprise use of the ground levels (for each building) for what is indicated as "shop/business" purposes and upper levels for "residential - shop/top" purposes. In addition certain areas are indicated as for "parking", "COS" (community open space), "deep soil" and as "lift over run" (Ex J plan reference E-02 and E03).

[11]

Heritage

A Smith and K Danis provided expert heritage evidence for Council and the applicant respectively.
Some further introductory commentary (in addition to the commentary above in regard to the 'reference scheme' at [19]) is required in regard to what might, and might not, be approved with the matter before me here. During the hearing, and in particular the expert heritage evidence itself, some consideration was given to treatment details in regard to restorative, interpretive and associated works concerned with heritage conservation management. I also note a Conservation Management Plan (CMP) prepared by City Plan Heritage Pty Ltd (the firm Ms Danis works with) was lodged with the CDA and proposes certain works (Ex A, Tab 1, p240 et seq). However, as I understand it, neither this CMP, nor the treatment details (in the broad) considered in the expert dialogue on restorative and other works in evidence, would be embodied in any approval of the CDA before me.
However, the potentialities in regard to restorative, interpretive and associated works must have some relevance for me in coming to a decision on the heritage conservation questions. I have noted that two of the proposed conditions (included in the agreed without prejudice conditions from the parties) are explicitly designed to provide for a further evolution of the project's heritage response as the design proceeds. Condition 27 requires the preparation of a Conservation Strategy which would be prepared in conjunction with the CMP and would be submitted to Council for approval prior to the submission of the "Design Competition Brief" (the approval of a "Design Excellence Strategy", no doubt including details about the design competition brief, is one of the deferred commencement conditions in the agreed without prejudice conditions submitted from the parties). Condition 28 would then require the preparation of a Heritage Interpretation Plan making recommendations regarding interpretation, and "public accessibility, signage and lighting". The Heritage Interpretation Plan is also to be approved by Council.

[13]

Statutory provisions

Clause 5.10 of the LEP deals with heritage conservation. The clause relevantly provides as follows: 5.10 Heritage conservation (1) Objectives The objectives of this clause are as follows: (a) to conserve the environmental heritage of the City of Sydney, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, … (2) Requirement for consent Development consent is required for any of the following: (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance): (i) a heritage item, … (b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item, … (e) erecting a building on land: (i) on which a heritage item is located or that is within a heritage conservation area, or … … (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). (5) Heritage assessment The consent authority may, before granting consent to any development: (a) on land on which a heritage item is located, or (b) on land that is within a heritage conservation area, or (c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned. (6) Heritage conservation management plans The consent authority may require, after considering the heritage significance of a heritage item and the extent of change proposed to it, the submission of a heritage conservation management plan before granting consent under this clause.
The LEP's design excellence requirements are also linked to Council's heritage concerns. The provisions of relevance include: 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 …

[14]

Issues

There was a common understanding of the history of Buildings A and C on the part of the experts. Briefly here, Building C was constructed in 1937 for the manufacture of tank gearings for WWII. Building A was incorporated into the manufacturing process in 1942. The top lit (sawtooth roof) design was an energy efficiency feature. Gear production ceased in 1947 and the buildings were used for manufacturing of chemicals, confectionary and moulding plastics over subsequent years. The statement of significance contained in the CMP provides, in part, as follows (Ex A, Fol 377): "This former factory represents the industrial development of Alexandria during the mid-twentieth century. It is historically significant for its connection to the Australian manufacturing of tanks and maritime craft for Word War II and automotive and farm machinery during peacetime, and as evidence of this formerly widespread engineering industry in Alexandria. The factory buildings also provide evidence of other widespread industries in the area from their post-war uses for manufacturing chemicals, confectionery and moulding plastics. As such the factory represents the development of new technology and products of the twentieth century, in particular the development of automated transport and equipment for Australian defence an agriculture and the growing use of plastics and chemicals." Council's position is that (Ex 1, p7): "The proposed development will have adverse heritage impacts on a highly intact locally listed heritage item … The proposal will result in a change that is physically and practically irreversible…The changes to the fabric and reduction of spatial qualities to facilitate the proposed residential use will result in extensive and unacceptable impact and loss of heritage fabric."
In turn, Council argues the proposal is contrary to LEP and DCP objectives and requirements; and is contrary to the CMP (Ex A, Fol 240 et seq) and nominated articles of the Australia ICOMOS Charter for Places of Cultural Significance, The Burra Charter, 2013 (Burra Charter).
Council's contentions in regard to heritage can be separated into two broader (although related) considerations: (1) loss of significant fabric and character to the heritage items of themselves and (2) impacts as viewed from the public domain.
I turn now to the particular evidence in regard to these matters.

[15]

Loss of significant heritage fabric and character

Mr Smith's particular concerns in regard to loss of heritage fabric and character include:

For Building A, and while acknowledging roof trusses and structural columns would remain in situ at the upper level, a breaking up or subdivision of the existing open top lit (via the sawtooth roof design) large span spaces for residential purposes is proposed or at least likely. In addition the top lighting attribute would be prejudiced by the overshadowing effects of the new building works "resulting loss of spatial quality and scale". The intended works would also "compromise any reversion to the large industrial/commercial uses consistent with the zoning". Mr Smith noted that there other feasible uses as evidenced by Eveleigh Rail Sheds.
The reference scheme indicates the need for a significant number of additional structural members (especially columns and including some 41 new columns at the ground floor level of Building A and 20 new columns on the first level), fire (and other) stairs and lift shafts required with the new envelopes proposed within Buildings A and C. The regularity and grid pattern arrangements within the open areas would thus be lost and there would be a reduction in the heritage significance of the item.
The elevated accessway indicated in the reference scheme shown as running east-west through the central area of Building A's ground floor level (elevation is apparently required due to flooding considerations), would particularly break up the scale and continuity of the ground floor level (otherwise seen as well-representing the large span (former manufacturing) interiors of heritage significance).

Mr Smith saw the proposal as "changing what it feels like" to be in that space; and given the rarity of this kind of heritage fabric it is important that it be kept in its original form.
Ms Danis posited that (Ex 3, p 8-9): "… this proposal would maintain the heritage significance necessary for it to remain a locally listed heritage item…, all fabric that is ranked as being of High significance in the CMP will be retained together with considerable conservation works that will enhance the architectural features and facades of the heritage item. The identified heritage values of the heritage item as defined in the Statement of Significance will still be retained even after completion of the proposed development. In particular the values associated with the historical development (Criterion A), historical associations (Criterion B), aesthetic and technical significance (Criterion C) and representativeness (Criterion G) will be retained and exposed to the future uses of the heritage item."
I note the above references to "values" and "criterion" refer to the CMP.
One of the points made by Ms Danis is that the proposal has the potential to open up the building to greater public attention and enhance its historical interest (ibid): "…The internal warehouse characteristics of the heritage item are exposed to the limited number of users of the storage containers. The proposed mixed development will provide opportunity to make apparent and expose the heritage item's historical importance and role as "one of the largest known collections of industrial and warehouse buildings of its kind in Australia, which records City of Sydney's past as one of only two historic industrial heartlands in Australia" (Statement of Significance in the CMP, 2016, s.6.4, paragraph 8). The historical importance of the former Coote & Jorgensen Engineers factory is currently not apparent in this regard. Heritage Interpretation will also form part of the development and anticipated to be detailed as part of Stage 2 application and consent conditions."
In regard to the numerous new columns and other structures within Buildings A and C referred to by Mr Smith, Ms Danis noted that the reference scheme was concept only and there was potential for structural engineering solutions to reduce the additional columns. It was suggested that this applied particularly to Building A which was structurally strong (I note here it was also suggested by Mr Galasso SC (counsel for the applicant) that there could be expected to be also potential for design solutions which relocated the central elevated walkway at the ground level). Some improvements in regard to heritage fabric were also mentioned. For example at present the sawtooth roof in Building C could not be seen from within, due to suspended ceiling, and this roof would be exposed with the intended works.
Ms Danis also refers to the aesthetics of the building facades as an element of fabric, but also in regard to streetscape. For convenience, I cover this issue below when I consider impacts from the public domain.

[16]

Impacts from the public domain

It seems to me necessary to consider these public domain or street level heritage impacts on two levels: (1) aesthetic presentation of the buildings and (2) wider viewlines (where the particulars of the aesthetic would not necessarily be appreciated).
The aesthetic values of the heritage item are defined in the State Heritage Inventory Data Base (Ex A, fol 378): "Aesthetically, the two buildings make important contributions to the streetscapes of Botany Road and Ralph Street. Both buildings represent good examples of mid-twentieth century factory buildings designed in the inter-war functionalist style. The buildings feature typical characteristics of the functionalist style including contrasting horizontal and vertical motifs, simple geometric massing and ornamentation, high parapet concealing sawtooth roofs, stepped skylines, curved corner elements, polychromatic face brickwork, relief decoration emphasising parallel lines, ornamentation concentrated along the parapet wall, steel multi-paned ribbon windows and monumental entrances. The Botany road building also demonstrates Art Deco elements with its pronounced symmetry and geometric decorative motifs."
I understand it to be generally agreed that the interwar functionalist style elements would not be lost and it was reasonably expected that the proposal would enhance and recover these aesthetic elements. An exception, or risk of exception, cited by Mr Smith is in regard to the first level window treatment of the Ralph Street façade. Mr Smith was concerned that the use of this floor space for residential purposes, and associated BCA requirements, might preclude window treatment required from a heritage point of view.
There was agreement from the experts that the impact of the new envelope to Building A to the Ralph Street façade was principally related to viewlines from Doody Street (which runs perpendicular to Ralph Street to the west). Mr Smith was concerned that the mass of the new envelope meant it could present as subservient to the heritage item, and would visually appear as entirely inconsistent with the existing form and nature of the heritage presentation. Ms Danis disagreed noting the extended setback of the top storey element of the proposed envelope.
There were similarly differing views in regard to Building C and the presentation to Botany Road. Mr Smith saw the new envelope massing ("more than double" the height of the existing building parapet) as dominating and with significant adverse impact from the immediate public domain (Botany Road) and diagonally from the north-east. Ms Danis again noted the additional setback of the top level and how existing and proposed buildings would screen some potential viewlines.
In regard to both buildings, Mr Danis argued that the footprints of the proposed envelopes comprised a reduced area compared to the existing footprints and that this, as well as the setbacks of the new envelopes, would assist the new works to be read as subservient to the heritage items.

[17]

Findings on heritage

Mr Smith sees the proposal as resulting in the reduction of the cultural significance of the item and that this is an unacceptable impact. In particular he believes that the residential uses intended for parts of the development (due to their shallow floor plates, lighting demands and also infrastructure requirements including access arrangements) are fundamentally incompatible with a deep plan, top lit industrial building. In support of his position he cross-references Burra Charter cl 7.2. Mr Smith further posits that the proposal would bring irreversible changes (again inconsistent with Burra Charter conservation principles) precluding future reintroduction of more compatible (commercial/industrial) development consistent with the current B7 Business Park zoning.
However, on balance, I favour the evidence of Ms Danis in regard to the heritage considerations. I am persuaded by four lines of reasoning which I outline below in no particular order of priority.
Without detracting from the importance of conservation of itself, and the interpretation of heritage items on the part of those with specialist expertise and interest, at present there is little capacity for the subject heritage item to gain public attention or interest. The first reason for supporting the proposal on heritage grounds is that, as a matter of principle, it seems to me there is a story of 20th century industry and manufacturing, represented here, which would seem more likely to expand in public value with the showing. As Ms Danis submits, the proposal has this intention both in terms of external building presentation and by exposing some at least internal historical function currently hidden from view. It would follow that these matters would be considered in the "to be approved" Conservation Plan and/or Heritage Interpretation Plan referenced in the agreed without prejudice conditions; and that the design excellence process for the subsequent stage of development provides a vehicle to establish how this might eventuate practically and sensitively, including within the ground and upper levels of buildings, both in terms of design and land use particulars.
My second line of reasoning turns to negative impacts or potential negative impacts. In regard to the envelopes and in particular the impacts on the public domain, I note Mr Smith's comments, synthesised in Mr Wright's (SC) closing submissions, that having the proposed envelopes above will detract from the interpretation of the heritage buildings "as a whole" and "deprive the buildings of meaning". On this point, I partially accept the evidence of Ms Daris, noting that the proposed envelopes do not occupy the entirety of the existing buildings (ie are less wide) and are setback reasonably from existing facades (at Ralph Street; at Botany Road), with the top level massing setback further, again by a considerable amount (although seemingly only measurable by scale), for both Buildings A and C. However, I do see the envelope massing as a negative in heritage terms. But this should not be seen as automatically determinative for this application (noting that cl 5.10(4) of the LEP requires "consideration" of effects). In regard to heritage considerations alone, the impact needs to be balanced against the positive factors. For me, the balancing decision is easier when considering the Ralph Street presentation, especially given the street trees which would filter views to the site from Doody Street in any event. In regard to views from Botany Road, apart from setbacks of the additional building envelope, there is a reliance on the somewhat restricted sightlines discussed in the evidence. However, the view from the immediate east is not restricted and is important, and only partially addressed by the proposed setback.
My third line of reasoning, and turning to the internal fabric and character particularly, points to the limitations of the scope of the application. While the consideration of the CMP and the reference scheme are of some assistance, in this case it seems to me the position on the question of retention of internal fabric and character can only be determined as the procedures in the lead-up to subsequent development application resolve. These include preparation of Conservation and Heritage Interpretation Plans. It seems to me that there is a resolution of the question of appropriate heritage conservation available in regard to the matters of internal fabric and character, but the concept building envelopes and indicative land uses which I am considering here with this CDA cannot appropriately take a position in regard to them. This position may seem at odds with my positive conclusions in regard to the applicant's agreement to adopt certain conservation elements of the CMP provisions, discussed immediately above (in regard to external treatments). For me the difference is that there is, as yet, no indication of a final position from the applicant in regard to internal arrangements, but neither are they seeking approval for the reference scheme; and there is a process for its resolution ahead.
My fourth line of reasoning draws in the wider realm of s 4.15 of the EPA Act. Of course, there are a number of issues which come under evaluative scrutiny in development assessment. Here I give some weight to the agreement of the urban design and planning experts on the concept building envelopes, as modified, following joint conferencing. The conscious setting aside of heritage concerns in this agreement is noted. Nevertheless, the fact that these experts were (generally) satisfied with the concept envelopes, in regard to the scope of their concerns, provides support to, rather than an argument against, the proposal. I recognise here there are some, what I consider, lesser matters that are still required to be addressed, but I make this conclusion mindful of these further matters requiring consideration.
Finally, I have regard to the provisions at cl 6.21 of the LEP. Having regard to The Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 158, the provisions of cl 6.21 of the LEP, in relation to design excellence, apply to this CDA. Under subcl (3), development consent must not be granted unless I believe the proposed development "exhibits design excellence". Then, of particular pertinence, matters which I must "have regard to" under subcl (4) include "any heritage issues and streetscape constraints". As referenced in my earlier quotes from their joint expert report at [38]-[39], there is disagreement from the heritage experts as to whether the proposal exhibits design excellence. I need to balance the heritage issues with other matters in coming to my conclusion on this question. Having done so, I find that the proposal does exhibit design excellence. I make this conclusion in regard to the "concept envelopes" based on the alterations to the envelopes agreed by the urban design and planning experts, after their considerable attentions over a period of time. I also find these changes, as embodied in the now proposal before me, were important in ensuring that both streetscape and heritage impacts are minimised. In coming to my conclusion in consideration of the "indicative land uses", which are related to the question of internal fabric and character, I am also mindful of the agreed without prejudice conditions in regard to the Conservation Strategy and Heritage Interpretation Plan (ie conditions 27 and 28), referenced above.
I further note cl 6.21(5) and the provisions for competitive design process in certain instance. In the circumstances ofthis application, such a process would be unreasonable and unnecessary. There are two main reasons. First, I am already happy that the design excellence requirements have been achieved in regard to this CDA; and second, because of the requirement for a design excellence strategy including a competitive design process as a deferred commencement condition.
My conclusion, in balancing out the above lines of reasoning, is that the proposal is satisfactory in regard to heritage conservation concerns.

[18]

Land dedication on Botany Road

The DCP's Public Domain Setbacks Map indicates "1.4m Setback - Footpath widening" along the site's Botany Road frontage. Then Table 5.13 of the DCP provides as follows in regard to "Footpath widening setbacks": "Land to be dedicated to Council for the purpose of footpath widening. Additional setback may be required from new site boundary. The setback is to be provided clear to the sky …"
Council contends that a 1.4m strip of land is to be dedicated to Council along the Botany Road frontage to enable footpath widening. The contention is that (Ex 1, p30): "In order to facilitate this dedication, a public benefit offer is required to be submitted and a planning agreement executed. The Concept DA does not include a public benefit offer."
An unusual situation presents itself in regard to this contention, wherein the planning and urban design experts agreed, in their joint expert report, that "a VPA letter of offer should be provided in relation to the Botany Road 1.4m land dedication" (Ex 4, p69). Here I take VPA to stand for "voluntary planning agreement".
The applicant's position is that it is not 'volunteering' to dedicate this strip of land to Council and that there is no power for the Court to require dedication of the said land. Mr Galasso referenced Australian International Academy of Education Inc v The Hills Shire Council [2013] NSWLEC 1, where Justice Craig at [48] reaffirmed that statutory powers to impose conditions requiring the dedication of land are limited to instances legitimised under (now) Div 7.1 of the EPA Act, and aligned with contributions plans prepared under that division. It is agreed that there is no contributions plan requiring dedication of the 1.4m strip of land, and further that the land is not indicated in the LEP's Land Reservation Acquisition Map.
It is clear that in the circumstances, as described above, there is no power to require dedication of the land as a condition of this consent. Obviously there is no power to require an applicant to "voluntarily" enter into a planning agreement of some kind requiring the dedication of the land free of cost. There is the power to refuse the application, or if appropriate apply other conditions that might appropriately address the matter under attention in the provisions at Table 5.13 of the DCP, or otherwise.
Section 2.10.5 of the DCP provides the locality statement for Roseberry West, covering an area within which the subject site falls. Mr Wright directed me to two nominated "principles" (immediately under s 2.10.5) which have particular pertinence to the question before me here. They are: "(i) Capitalise on the future widening of Botany Road to upgrade the pedestrian environment to allow for tree planting, footpath widening and bike links. (j) Ensure large setbacks along Botany Road are integrated into, and form an extension of the public domain."
However, there is nothing concrete, as far as the subject land is concerned, in regard to the either the intended widening of Botany Road, or setbacks embodied in the controls (with which the proposal does not comply). Building C at 602-612 Botany Road is well setback. The plans (Ex J, Sheet E-03.1), with which the planners and urban design experts agree, do indicate the physical accommodation of the 1.4m setback area. The difference is that the land would remain in private ownership.
The applicant posits that there is no substantial issue in regard to merits in that building setbacks as proposed in the concept envelopes would not prejudice the future reservation of this land for road widening purposes, either acquired by Council at cost, or free of cost through a planning agreement involving the subsequent DA. I cannot see any policy provisions to suggest that this arrangement is inappropriate in the circumstances.
For the record, I note the issue of the existing heritage listed brick wall running along the boundary of 602-612 Botany Road, and do not see the dedication of the said strip of land as pertinent to its conservation. That is, and mindful of the evidence, the wall could appropriately retain its heritage conservation value with, our without, the dedication of the strip of land.

[19]

Street trees in Ralph Street

Council raised concerns about the potential future impact on two street trees located on the Ralph Street footpath near the site's south-west corner. An arborist's report has been provided in consideration of this issue (Exhibit H). The southernmost tree (T1) is identified in the arborist's report as a London Plane tree ("large mature specimen with high landscape value"). The tree to the north of it (T2) is identified as a Kaffir Plum ('mature specimen in fair condition with moderate landscape value'). The canopies of both trees extend into the concept building envelope area. Area indicated as potential driveway access is also affected; however it would be my interpretation that driveway locations are subject to subsequent DAs in any event.
The arborist's report provides two pieces of information pertinent to the decision before me. First, at p6-7, it engages in consideration of the pruning of T1. The report includes the following commentary: "…Although some pruning may be possible to reduce the (tree's) crown spread, it will not be possible to prune the tree back to the boundary."
Second, the report provides a plan (referenced as 'Appendix A - Tree Location Plan' as well as 'Tree Protection Zone' and 'SK-46') which indicates (as I was advised by the parties): the trees including their trunks and their indicative canopies and an areas designated as tree protection zones (TPZ). For example the TPZ for T1 extends out some 14.4m from the trunk's centre.
A without prejudice deferred commencement condition provided by Council (email to Court dated 18 April 2019) indicated as follows: "PROTECTION OF STREET TREES IN RALPH STREET AND AMENDMENT TO ENVELOPE OF BUILDING B (RALPH STREET) The envelope of Building B (Ralph Street) shall be amended to be setback from the western boundary of the site at all levels, inclusive of the basement, so that it does not encroach into the Tree Protection Zones for Street Trees 1 and 2 shown on the Tree Protection Plan (SK-46) in the Arborist's Report, prepared by Martin Peacock Tree Care, dated 2 April 2019. The amended envelope plans demonstrating compliance with this condition shall be submitted to and approved by the City's Director of Planning, Development and Transport prior to any activation of this consent."
A note to this without prejudice condition indicates: "Council's position is that issue should be determined now, if unsuccessful, this (ie the above) condition is imposed in the alternative".
An alternative deferred condition was put by the applicant (email to Court dated 18 April 2019) as follows: "A report is to be provided to Council from a suitably qualified arborist to advise the extent to which the 2 most southerly Street Trees on the eastern side of Ralph Street adjoining the site can be safely trimmed and retained. If such report concludes that after any trimming of those trees the envelope of Building B (Ralph Street) encroaches into their Tree Protection Zones, then the envelope of Building B (Ralph Street) shall be amended at all levels, inclusive of the basement, so that it does not encroach into the Tree Protection Zones. Any such amended envelope plans shall be submitted to and approved by the City's Director of Planning, Development and Transport"
It seems to me that the arborist's report, with the quote I reference at [74], opens the door to the potential for development within the TPZ area referred to in Council's deferred commencement condition. This suggests to me it is unreasonable to adopt the TPZ areas identified in plan SK-46 now, or as a deferred commencement "constraint". According to the arborist's report, the final extent of development requires further more specific investigation. I believe the applicant's suggested deferred commencement condition provides an appropriate approach to resolution of this matter.

[22]

The jurisdictional test

The Court has given considerable attention to the question of contravention of development standards recently (see Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action) for both a summary and a most recent positioning of the caselaw). There is no jurisdiction to approve the development which contravenes a development standard unless the permissive powers available under cl 4.6 of the LEP are triggered (Initial Action at [13]). Clause 4.6 provides, relevantly, as follows: (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. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence.
The Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the power under cl 4.6(2) to grant development consent: Initial Action at [14]. The first opinion is in regard to the applicant's written request, and whether it has adequately addressed the two matters required to be demonstrated at cl 4.6(3). The second opinion requires me to make my own finding of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out. The written request is considered below.
I note here there is no requirement for me to seek or assume the concurrence of the Secretary (under s 39(6) of the LEC Act), but nonetheless I would mention that I do not see this matter as raising any matter of significance for State or regional environmental planning.

[24]

Compliance unreasonable or unnecessary in the circumstances of the case

The written request uses the first "way" established in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 to establish that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. That is, that the objectives of the standard are achieved notwithstanding non-compliance with the standard. The objectives of the standard are provided at cl 4.3(1) of the LEP, and 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, (e) in respect of Green Square: (i) to ensure the amenity of the public domain by restricting taller buildings to only part of a site, and (ii) to ensure the built form contributes to the physical definition of the street network and public spaces.
In regard to objectives (a) and (b), the written request submits that there has been a very detailed analysis of the site context including in regard to overshadowing potential, public domain impacts and heritage considerations. Reference is made to the relatively small envelope tower elements at either end of Building B and that the taller elements are recessed back from the building edge similar to the scale of other existing and proposed buildings in the locality. A series of approved development applications in the locality are referenced in support of the argument.
In regard to objectives (c), the written request again notes that the proposal is consistent with the pattern of existing and future development referenced above and would not obstruct identified or general view lines. It is also again noted that the taller envelope elements would be setback from the main building façade.
Given the site location (ie not located in the environs of Green Square of Central Sydney), I do not see objectives (d) and (e) as relevant to me in this evaluation.
Based on the arguments as put above, supported by planning and urban design experts on both side in oral evidence, I accept the written submissions arguments that compliance with the development standard is unreasonable or unnecessary in the circumstances as the objectives of the standard are achieved notwithstanding non-compliance with the standard.

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Judgment (29 paragraphs)

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