Samadi v Council of the City of Sydney

Land and Environment Court (NSW)|2014-09-23|Before: Cripps J

Judgment 1COMMISSIONER: This is an appeal against the deemed refusal by the Council of the City of Sydney of Development Application D/2014/598 for the construction of an additional residential dwelling to be located on the roof area of a previously approved mixed use development at 533-535 Elizabeth Street, Surry Hills (the site). 2The history of approvals is relevant to the proposal before the Court. Council on 20 August 2012 approved Development Application D/2012/559 for a 7 storey mixed use building with 2 commercial tenancies on the ground floor, 22 residential units, a common roof terrace and basement car parking for 8 vehicles. 3Development application D/2012/1553 was approved by Council on 15 February 2013 for a change of use of the 22 approved residential units to serviced apartments. 4The contentions raised by council address only the new residential unit on top of the approved development. These contentions are:

excessive height.
excessive floor space ratio (FSR), and
loss of roof top communal open space.

The site 5The site is Part Lot 1 DP 598694. It has an area of 388.5 sq m and is orientated in an east-west direction and falls away to the west towards Little Buckingham Street. The principal frontage of the site is to Elizabeth Street to the east (13.3m), with a secondary frontage to Little Buckingham Street to the west. 6The site is adjoined on the north by 529-531 Elizabeth Street, an 8 storey building known as the former Business Information Centre (BCI building) and to the south by a 2 storey commercial building at 537 Elizabeth Street although a development application has been submitted, but not yet determined, for this property. The surrounding locality is characterised by a combination of retail, office, commercial, educational, residential and community uses in a mixture of larger scale contemporary buildings and smaller scale older developments and residential terraces.

Relevant planning controls 7The site is within Zone B4 Mixed Use under the Sydney Local Environmental Plan 2012 (LEP 2012). The proposed development is permissible in this zone, with consent. Clause 2.3(2) states: (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.. 8Clause 4.3(2) provides for the height of buildings and states that "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 maximum height on the Height of Buildings Map is 22 m. It was agreed that the proposed development breaches the maximum height development standard with a height of 25.6 m. The applicant provided a written request that seeks to justify the contravention of the height development standard, in accordance with cl 4.6. 9Clause 4.4(2) provides for floor space ratio (FSR) and states that "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 FSR on the Floor Space Ratio Map is 3.5:1. It was agreed that the proposed development breaches the FSR development standard with an FSR of 3.97:1. The applicant provided a written request that seeks to justify the contravention of the FSR development standard, in accordance with cl 4.6. 10Sydney Development Control Plan (the DCP) applies. The site is within the Prince Alfred Park Locality. Clause 3.9.6 addresses Heritage conservation areas as the site is within the Cleveland Gardens Heritage Conservation Area. Elizabeth Street is the eastern boundary of the conservation area. The closest building that is identified as a heritage item is located to the south west at 86 Buckingham Street, being the Belvoir Street Baptist Church; a locally listed heritage item. Cleveland House, a state heritage item, is located to the north-west of the site.

Can the variation to the height standard be supported? The requirements 11Clause 4.6 provides the opportunity to provide exemptions to development standards by way of a written request. Clause 4.6 relevantly states: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Director-General has been obtained. 12The objectives of the height standard are set out in cl 4.3(1) and state: (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. The extent of the breach of the height standard 13The Dictionary to LEP 2012 defines building height as: building height (or height of building) means the vertical distance between ground level (existing) and the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like. ground level (existing) means the existing level of a site at any point. 14The extent of the breach of the height standard was agreed between town planners Mr Anthony Betros, for the applicant, and Mr Phillip Jones, for the council. The maximum height on the Height of Buildings Map is 22 m the proposed development has a height of 24.6 m and the maximum height of the lift overrun on the approved development is 25.6 m. The written request 15Mr Betros prepared the written request. He states that the proposed development is consistent with the height development objectives as the resulting height is appropriate to the condition and characteristics of the site, bulk, scale and height of other mixed use and residential flat development in the immediate area, being. 517-527 Elizabeth Street which has approval for 7-storeys and the existing 8-9 storey BCI building. Also, the proposed additional level will:

remain below the already approved height of 25.6m and below 25m.
be lower than the immediately adjoining building to the north as well as the development to the south across Belvoir Street.
provide a suitable transition from the northern neighbouring property, which has a height of 8-9 storeys, and the existing 2 storey development and Belvoir Street to the south.
be substantially recessed from both road frontages, which will ensure that there are no adverse visual, sight lines, shadow, privacy or solar access impacts to adjoining development.
ensure that the amenity, solar access, sight lines and views of adjoining and surrounding residential buildings are not impacted (Objective (a)). 16Given the limited degree of visibility of the addition, Mr Betros considers that the proposed additional level has negligible impact upon the Heritage conservation area. The integrity of the contributory components of the conservation area are unaffected by the proposal, as is the nearest heritage item to the south west, being the Belvoir Street Baptist Church (Objective (b)). 17Also, the proposed height will not affect any views from any surrounding property (Objective (c)). 18Mr Betros states that the additional level associated with the approved development satisfies the objectives of the zone as the height is compatible with other surrounding residential units particularly the existing BIC building immediately north and 517-529 Elizabeth Street which is approved and under construction. The proposed height is also compatible with the buildings south across Belvoir Street. 19There are sufficient environmental grounds to permit the variation for the reasons mentioned in preceding paragraphs, as well as:
the excellent internal performance of the unit.
the unit enjoys an open aspect with east and west facing views.
there is no requirement to provide additional parking. 20For these reasons Mr Betros maintains that the variation to the height standard is justified. The council's case 21Mr Jones states that no reliance can be placed on the height approved in Development Application D/2012/559 as the 25.6 m height relates only to the lift overrun that was acceptable because it provided disabled access to the roof top communal open space and was not visible as the structure was located centrally on the roof. 22Mr Jones identifies two main issues with the height. First, whether the proposed development would be visible in the surrounding area, and any associated impacts that arise as a result; and secondly, the wider strategic implications of the breach of the adopted controls. 23On the question of visibility, and using photomontages prepared by the applicant, Mr Jones states that it is likely that the proposal would be visible from the south of the site when approaching from Elizabeth Street, but he accepts that if 537 Elizabeth Street is developed to a height of 22m in accordance with the controls, then views of the proposal from the south will be largely obscured. 24Mr Jones rejects the approach of Mr Betros that transitioning to a higher building that is generally accepted as detracting, is an undesirable planning outcome and was not envisaged by the controls. In any event, the approved development already offers considerable screening of the upper portion of the BIC building when viewed from the south on Elizabeth Street. The protruding frame on the Elizabeth Street elevation of the building is an effective visual barrier because it sits forward of the predominant building line and appears higher than the parapet roof level. This is shown on the applicant's photomontages. The 22m high building envelope shown on the photomontage also demonstrates that a height compliant development at 537 Elizabeth Street would prevent any other views of the BIC building from the Elizabeth Street photomontage location. 25While the screening of the BIC building is a legitimate consideration, the approved development already substantially improves this situation. Mr Jones also notes that the setback of the proposed additional storey means that it plays a very minor role in screening the blank wall of the BIC building. 26Second, and on the wider strategic implications of development, Mr Jones considers that the proposal creates a precedential effect that could lead to more developments in breach of the planning controls. The question of a precedential effect is particularly relevant given the number of nearby sites going through the development process. The assessment framework 27Clause 4.6 of LEP 2013 imposes four preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). The second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). The third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). The fourth precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)). 28In considering the question of consistency, I have adopted approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, Her Honour expresses the following opinion at [27]: The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible. 29A negative finding for any precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment. Findings - zone objectives 30The zone objectives are: · To provide a mixture of compatible land uses. · To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. · To ensure uses support the viability of centres. 31The zone objectives are broad and are not particularly helpful in dealing with the question of whether a variation to the height standard is appropriate. On this basis, Mr Betros and Mr Jones, correctly in my view, did not raise any particular concern with the zone objectives. 32I am satisfied that the proposed development is consistent with the objectives and if there is any inconsistency this relates to the relevance of the objective and would not be a matter that could lead to the refusal of the application. Findings - height objectives 33The height objectives in cl 4.3(1) are: (a) to ensure the height of development is appropriate to the condition of the site and its context, (b) to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas, (c) to promote the sharing of views, (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. 34Like the zone objectives, only certain of the height standard objectives are relevant. It was agreed that the proposal has no affect on views (objective (c)). Objective (d) refers to "appropriate height transitions from Central Sydney and Green Square Town Centre to adjoining areas," and objective (e) refers to Green Square. Neither objective is relevant in this case as the site is not one that transitions from Central Sydney to adjoining areas and the site is not located in Green Square. 35Objective (a) seeks to "ensure the height of development is appropriate to the condition of the site and its context". With the benefit of the site inspection and an understanding of the plans and montages, I am not satisfied that the additional height "is appropriate to .... its context" for a number of reasons. I have taken "context" to mean the visual catchment of the site and particularly that part of Elizabeth Street between Belvoir Street and Bedford Street. 36Mr Betros essentially relies on the lack of visibility of the additional level from many locations around the site and the need to provide a transition in height to the unsympathetic and non-complying BIC building within a Heritage conservation area to support the breach of the height standard. It could almost be argued that these two matters are mutually exclusive, in that the additional level should not be seen so it would not be seen as a breach of the height standard but at the same time, the extra level must be seen to provide a transition to the BIC building. 37Even though Mr Betros appropriately addressed the breach of the height standard through objectives (a) and (b), I am not satisfied that the variation is consistent with these objectives for a number of reasons. First, I accept the evidence of Mr Jones that the breach of the 22 m height requirement in Development Application D/2012/559 for the lift overrun is no basis to support the proposed variation given that it provided access to the roof top communal open space and was not visible. 38Second, I also agree with Mr Jones that even if it was accepted that there should be some transition with the BIC building then the amount of the new level that would visible and achieve this transition is minimal based on the photomontages. I do not accept that breaches of the height requirement can be justified given the small amount of screening that it achieves in the appearance of the BIC building. Notably, the additional level would not affect large areas of the blank south facing side wall of the BIC building. 39Third, the need for of any transition from the site to the BIC building, is in my view overstated, and would not necessarily be appreciated from the public areas around the site given the design and height of the existing buildings, the design of the approved building on the site and the likely restriction on visibility of the transition area by the redevelopment of nearby buildings, particularly the property directly to the south. While much of the evidence centred on the two-dimensional streetscape drawing along Elizabeth Street; this is a view that artificially represents the relationship between buildings. While accurate, it is not a relationship that is able to be fully understood from nearby public areas. 40Fourth, and while the height of the unsympathetic and non-complying BIC building was seen by Mr Betros and Mr Jones as a discordant form within the Heritage conservation area, I am not convinced that making adjoining buildings higher necessarily reduces the impact of this building or helps reinforce the character anticipated by LEP 2012. The applicant's arguments would have had more force if there were also not a breach of the FSR standard and to a lesser degree, the number of storeys control in the DCP. 41As the proposed development is not consistent with height objectives (a) and (b), development consent must be refused. Is compliance with the development standard unreasonable or unnecessary? 42I do not accept that the applicant has justified the contravention of the height development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. 43In Wehbe v Pittwater Council [2007] 156 LGERA 446 Preston CJ establishes a number of ways to establish that compliance is unreasonable or unnecessary. The most commonly invoked way (and the way in cl 4.6(4)(a)(ii)) is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard. For the reasons in the preceding paragraphs I do not accept that the applicant has established this to be the case. Are there sufficient environmental planning grounds to justify contravening the development standard? 44For the reasons in pars 37 to 40, I am not satisfied that the applicant has provided sufficient environmental planning grounds to justify contravening the development standard. 45I am also not satisfied that sufficient weight has been given to the 22 m numerical standard in the development. Clause 4.3(2) provides that 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 starting point for height is cl 4.3(2) and in this case, a maximum height of 22 m. While flexibility is available in the application of development standards by cl 4.6, it does not follow, in my view, that simply because the non-complying height of a building may only be able to be seen from certain locations or that the BIC building is unsympathetic in the Heritage conservation area, that these circumstances justify a breach of the height standard. The 22 m standard must have some work to do in considering the appropriate height of a building on the site. 46In Hooker Corporation Pty Limited v Hornsby Shire Council (unreported, 2 June 1986) Cripps J, makes the following comments on a SEPP 1 objection, although I see no reason why the comments are not relevant in this case: ....it now established that is not sufficient merely point to what is described as absence of environmental harm to found an objection. Furthermore, the objection is not advanced, in my opinion, by an opinion that the development standard is inappropriate in respect of a particular zoning. The Court must assume a development standard in a planning instrument has a purpose. 47For completeness, I will briefly deal with the other matters in dispute.

Can the variation to the FSR standard be supported? 48The approach to determine whether the variation to the FSR standard can be supported is set out in the preceding paragraphs on height (pars 11, 27 to 29). The extent of the breach of the FSR standard 49Mr Betros and Mr Jones agree that the FSR of the development, with the proposed additional level, is 3.97:1 compared to the FSR of the approved development of 3.68:1 and the FSR from cl 4.4(2) of LEP 2012 of 3.5:1. The written request 50Mr Betros states that the proposed development is consistent with the FSR objectives as the additional level facilitates a 1 x 2 bedroom (+ study) unit, which is considered to assist with the provision of housing in this area, in an appropriate manner. The proposed FSR provides for high quality unit and represents an alternative unit type to the predominance of 1 bedroom units within the building (Objective (a)). 51The proposed density is associated with a built form, which will sit comfortably in its context. The distribution of floor space within the development has been sensibly provided to result in a bulk and scale, which will not appear out of character in its context. The distribution of floor space on the site has been provided for in an appropriate manner (Objective (b)). 52The positive streetscape outcome has a significant benefit to the public domain. The combination of these factors provides for an appropriate streetscape outcome whilst also maintaining amenity to surrounding properties and allowing for future redevelopment to occur in an orderly manner surrounding the site. As with 461-465 Elizabeth Street, which has a council approved FSR of 3.65:1, the proposed additional level is consistent in bulk and scale with development in the immediately surrounding area. Additionally, the recessed nature of the additional level ensures that the development will not be detrimental to the streetscape presentation and that there are no adverse impacts in terms of privacy, views, solar access or overshadowing (Objective (d)). 53For these reasons, the variation to the FSR standards can be supported. The council's case 54Mr Jones states that the additional FSR is directly related to the height and the two breaches of development standards must be considered together. The FSR standards seek to regulate the density and intensity of built form and land use; and to make it clear to developers, neighbours and the community the appropriate quantum of development on land throughout the local government area. The breach of FSR, in common with the breach of height, is not reasonable or necessary and does not result in a better planning outcome. For these reasons, the proposal does not meet the terms of cl 4.6(3)(a) and (b) of LEP 2012. 55Allowing a development, which exceeds the FSR control, also sets an undesirable precedent for other developments, such as 537 Elizabeth Street, which currently seeks development with an FSR of 3.95:1. The particular circumstances that resulted in other development being approved with FSR's beyond the development standard are unique to those sites. This includes 461-465 Elizabeth Street (D/2012/1052) where the site was required to retain contributing buildings in the heritage conservation area and introduce additional retail space at council's request. The development also complied with the height controls. For these reasons, it is considered that other sites do not readily compare to the particular circumstances of the appeal site. Findings - zone objectives 56For similar reasons as set out in par 31 and 32, I am satisfied that the proposed development is consistent with the zone objectives and if there is any inconsistency, this relates to the relevance of the objective and would not be a matter that could lead to the refusal of the application. Findings - FSR objectives 57The FSR objectives are: (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. 58I agree with Mr Jones that the issues of height and FSR are related as the additional floor manifests itself in the additional level and hence additional building height. It is however still necessary to assess the proposal against the FSR objectives. 59There can be little argument that this development is consistent with providing "sufficient floor space to meet anticipated development needs for the foreseeable future" (Objective (a)), controlling "the generation of vehicle and pedestrian traffic (part Objective (b)), "commensurate with the capacity of existing and planned infrastructure" ((Objective (c)) and "minimises adverse impacts on the amenity of that locality (part Objective (e)). 60I am not satisfied however that the development is consistent with the objectives that seek to regulate "the density of development, built form and land use intensity" (part Objective (b)) and ensure that "new development reflects the desired character of the locality" (part Objective (e)). 61The desired character of the locality that includes the density of development, built form and land use intensity, are best reflected in the councils planning controls. While cl 4.6 provides the opportunity to vary these controls, it does not mean that simply because the additional floor cannot be seen (or partially seen, in this case) that this entitles additional floor area, above that set out in LEP 2012, to be provided. Having found that the development is consistent with a number of objectives (see par 59), the cumulative affect of multiple developments that seek additional floor area may lead to an inconsistency with these objectives remains unanswered. 62Having found that the additional floor area (in the form of the new level) is inconsistent with some FSR objectives, the development application could be refused for this reason alone. Is compliance with the development standard unreasonable or unnecessary? 63I do not accept that the applicant has justified the contravention of the FSR development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. 64The comments on Wehbe (at [46]) are also relevant in relation to the breach of the FSR requirement. For the reasons in the preceding paragraphs I do not accept that the applicant has not established that compliance with the development standard is unreasonable or unnecessary. Are there sufficient environmental planning grounds to justify contravening the development standard? 65For the reasons in pars 58 to 61, I am not satisfied that the applicant has provided sufficient environmental planning grounds to justify contravening the development standard. 66The comments in par 45 and 46 are equally relevant to the breach of the FSR requirement and that the applicant has not provided sufficient environmental planning grounds to justify contravening the development standard.

Communal open space 67Mr Betros and Mr Jones disagree over the loss of the roof top communal open space provided with the approval of D/2012/559. Mr Jones states that the loss of the communal open roof space is a significant and undesirable outcome of the development. The high quality amenity afforded by the rooftop location, as evidenced by the development's compliance with all amenity controls, should be available for the benefit of all residents to share. The reliance on public open space, such as Prince Alfred Park referred to in Mr Betros's evidence is not acceptable. 68Mr Betros considers that the amenity of the units remains of a high quality and that it is not unreasonably compromised by the proposal, which involves removal of the communal area. The absence of communal area is not uncommon for recently approved developments in inner urban areas, including this part of Elizabeth Street, particularly when nearby to parks. In this instance, the site is within 100m of Prince Alfred Park, which is considered to have an exceptional level of amenity. 69While cl 4.2.3.8 of the DCP requires the provision of common open space, the undisputed evidence of Mr Betros was that the council regularly dispenses with this requirement where the site is within a dense urban environment, is a small site and is in close proximity to public open space. I agree with Mr Betros that the site satisfies these three criteria. Contrary to the evidence of Mr Jones, the approved common open space area is relatively small, exposed and has the potential for unacceptable amenity impacts on future residents of the building and while it provides a common area it has limited ability to provide the range of open space activities required by future residents of the building, compared to Prince Alfred Park. 70For these reasons, the loss of the common open space on the roof would not be a reason to refuse the development application.

Orders 71The orders of the Court are:

The appeal is dismissed.
D/2014/598 for the construction of an additional residential dwelling to be located on the roof area of a previously approved mixed use development at 533-535 Elizabeth Street, Surry Hills is refused.
The exhibits are returned with the exception of exhibits 1, A and B.

G T Brown Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 September 2014

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