Season Group Pty Ltd v Council of the City of Sydney

Solicitors: Mills Oakley (Applicant) Council of the City of Sydney (Respondent) File Number(s): 2019/21707; 2019/21763 Publication restriction: No

Judgment

1. COMMISSIONER: Two appeals were lodged by Season Group Pty Ltd (the applicant) for a mixed use development at 22-38 Yurong Street, Darlinghurst (the site). The site was the subject of development application D/2015/421 which was approved by the Court on appeal in 2016: Season Group Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1354 (the Court consent).
2. The Court consent was for demolition, alterations and additions to an existing building, and construction of new commercial/residential development on the site with 22 dwellings (the approved development). In December 2016, the Court approved a modification to the consent (D2015/421/A).
3. The site contains a contributory building situated within the East Sydney Heritage Conservation Area (HCA) and the approved development retained that building in part.
4. The first appeal, proceedings 2019/21707, is against the refusal by the Council of the City of Sydney (the Council) to modification application D/2015/421/B lodged under s 4.55(8) of the Environmental Planning and Assessment Act 1979 (the EPA Act) which seeks to modify conditions of the Court consent (the modification application). The main modifications are to the approved plans and the design and materials of the façade. In particular, condition 1 is sought to be amended to reference amended plans which redesign the townhouses facing Yurong Street, extend a proposed balcony wall, and change the brick colour and louvre design, external cladding and location of windows. Condition 5, which requires a materials board to be submitted, is to be amended to reference specific drawings which instead detail these materials.
5. The Council contended that the plans provided with the modification application were inaccurate and that the changes to the façade did not demonstrate design excellence and would have adverse impacts for the HCA. Further there would be amenity impacts for future occupants and neighbours from the design changes.
6. The second appeal, proceedings 2019/21763, is against the refusal of the Council to a development application, D/2018/1314, which seeks to convert part of the retained commercial building in the approved development into 4 apartments and 1 live/work apartment and to change the basement including by introducing car stackers to provide for 5 additional car spaces. It also involves the relocation of the plant area for air conditioning units on Level 1 to two new areas, being on the roof of the retained building and also on the roof of the new building to the north of the fire stair (the development application).
7. The Council contended that the plans provided with the development application were inaccurate and that there was insufficient detail in terms of some of the proposed works. Further, the proposal did not adequately address flood planning requirements given 4 dwellings were now proposed on the ground floor in place of approved commercial development, the floor to ceiling heights appeared inadequate, and the development would have adverse impacts on the HCA. Finally, there would be amenity impacts for future occupants and the proposal did not exhibit design excellence.
8. The Court arranged a single conciliation conference under s 34 of the LEC Act to deal with both appeals. I presided over that conciliation. As a result of that conciliation, agreements under s 34(3) of the LEC Act were reached between the parties.
9. As the presiding Commissioner, I am satisfied that the decisions are one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. I am therefore required under s 34(3)(a) to dispose of the proceedings in accordance with the parties' decisions.
10. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all of the pre-conditions to the granting of consent have been met.
11. The parties provided written advice on the jurisdictional matters to be considered, as contained in Annexure B (of each agreement), as well as a statement of reasons provided by the Council for coming to agreements on both applications, as amended: Annexure C (of each agreement).
12. The site is zoned B4 Mixed Use under the Sydney Local Environmental Plan 2012 (the LEP). The LEP provides development standards of relevance to both applications, including a maximum height of a building of 18m (cl 4.3) and maximum Floor Space Ratio (FSR) of 2.5:1 (cl 4.6). Compliance with the maximum permissible FSR is achieved in both applications. However, the height is exceeded in the development application, as it was in the Court consent.
13. Also, in terms of both applications, I am satisfied that the heritage requirements of cl 5.10 of the LEP have been considered and the impacts on the contributory building and the HCA found to be acceptable.
14. A BASIX certificate was provided with the approved development, as is required by State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, and this certificate is not required to be modified by either application.
15. Further, the agreed conditions of consent for the development application reference both applications and outline how the proposed consents for both applications are to be read together. For example, the conditions require that the Court consent, as modified, must be modified pursuant to s 4.17(1)(b) of the EPA Act. Condition 1, which references the approved development, is to be modified to reference the approved drawings nominated in the proposed consent for the development application, provided that those drawings are varied to include the modifications to the development made as a result of the approval of the modification application.

The modification application

1. In terms of the modification application, a 'Planning Statement' accompanied the application addressing the requirements of s 4.55(8) of the EPA Act (the Planning Statement). Having reviewed the Planning Statement, I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified, as is required by s 4.55.
2. Further, the application was notified as required by s 4.56(1)(b) but no objections were received.
3. I am also satisfied that the development now the subject of the modification application will have no significant additional environmental impacts when compared to the approved development.
4. Further, the amended proposal now utilises high quality materials and exhibits design excellence in accordance with the requirements of cl 6.21of the LEP.
5. The Court has the power to modify the Court consent under s 4.55(8) of the EPA Act given the relevant matters at s 4.15(1) of the EPA Act have been considered.

The development application

1. The development application is integrated development as excavation of the site is considered likely to intercept the water table, requiring approval to dewatering under s 91 of the Water Management Act 2000. In this regard, General Terms of Approval to the application were provided by Water NSW and comprise Schedule 3 of the proposed agreed conditions of consent.
2. The application was notified and 1 objection was received. This raised concerns with the height and scale of the development and its impact on views, the amenity of neighbours in terms of noise, and on a street tree.
3. As the proposed development breaches the height limit, the applicant relies on a written request submitted under cl 4.6 of the LEP to vary the development standard for the height of buildings as would otherwise apply under clause 4.3(2) of the LEP. In this regard, the application introduces a plant area on the roof of the building which exceeds 18m by 3.3m, or 18.3%.
4. I am satisfied that the written request meets the requirements of cl 4.6(3) in justifying the contravention of the development standard by demonstrating: 1. that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and 2. that there are sufficient environmental planning grounds (EPGs) to justify contravening the development standard.
5. In this regard, the following summarises the justification put forward in the request which addresses each of the relevant objectives of the height standard and provides a number of EPGs as follows: 1. The approved development included a number of rooftop structures which already exceed the 18m height control including a fire stair, lift overrun, balustrades, pergola structures and skylights. Whilst the proposed air conditioning plant also exceeds the height control, it is within the envelope of the previously approved height and the breach is of a lesser extent when compared to the approved fire stair and lift overrun. The development therefore retains essentially the same height relationship with its context and therefore remains an appropriate response to the circumstances of the site. The grant of the existing consent by the Court is an indication that the height of the approved development is appropriate to the condition of the site. 2. Given (1), there is no meaningful impact in relation to height transition within the site (which contains a contributory building in a HCA) or in terms of surrounding heritage items or the HCA generally. 3. View impacts resulting from structures above the 18m height plane were considered in the assessment of the approved development. The approved lift overrun and fire stair were considered to result in acceptable view impacts for properties to the south. The proposed air conditioning plant has been deliberately located behind the fire stair and is of a lesser height than the fire stair. It therefore does not result in any view impacts beyond those generated by the fire stair. Accordingly, the proposed development will not impact on any scenic or iconic views. 4. The setback of the plant from the edge of the roof is also such that it does not result in any significant increase in overshadowing beyond that in the already approved development. 5. The proposal does not result in any change to the approved number of storeys and therefore does not result in any meaningful change to the perceived scale of the development. Accordingly, the scale will not be perceived as jarring or antipathetic from a streetscape or urban design perspective. 6. The proposed variation to the height control is minor and will not result in a building which is inconsistent with the desired future character of development in the zone and locality generally. 7. The primary EPG is that the application proposes to delete an internal plant room and replace it with smaller, quieter condensing units on the exterior of the building. This is in response to engineering advice that: 1. The currently approved internal plant room necessitates an unusually high level of energy consumption for largely domestic air conditioning. 2. To move the amount of air from what is considered to be an internal space will involve consumption of 350,400 kwh over the course of a year. 3. The Court consent, unamended, will generate an equivalent of 320 tons of CO2 per annum (when compared with the proposal to locate the condensing units on the exterior of the building). 4. Due to acoustic and aesthetic requirements, if the condensing units are to be located on the exterior of the building, at least some of them will need to be located on the upper roof, hence the height contravention (and noting that everything on the approved upper roof already exceeds the height limit). 1. In short, a more energy efficient outcome is achieved by allowing the contravention without any material adverse environmental impacts. Given such an outcome is supported by both State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) and the EPA Act, this fact alone is sufficient to establish that requiring strict compliance with the height limit is unreasonable or unnecessary in the circumstances of the case.
6. In summary, there are already a number of rooftop structures approved which exceed 18m. The proposed air conditioning plant has been deliberately located on the northern side of the approved fire stair to ensure that it does not result in any further interruption to the views obtained across the site from buildings to the south, is setback from the eastern edge of the roof such that it is imperceptible from the public domain, and there is no visual impact from the public domain associated with the proposed variation when compared to a strictly compliant height.
7. In terms of meeting the objectives of the B4 zone, the proposed residential apartments are permissible within the zone and are compatible with surrounding uses. The development still provides a mixture of non-residential and residential uses which are compatible and complementary with one another.
8. In particular, the proposed apartments replace a commercial floor plate which is excessive in depth to achieve a viable commercial operation. The reduced retail tenancies have significantly improved internal proportions and are suitable for a broader range of viable retail or food and drink uses which will serve to activate the Yurong Street frontage. Further, the site is within close proximity to the Sydney CBD which will encourage walking and cycling.
9. The matters required by cl 4.6(4)(a) of the LEP are therefore satisfied. The development is consistent with the objectives of the B4 Mixed Use zone and of the height standard and therefore is in the public interest.
10. Clause 4.6(4)(b) is satisfied as the concurrence of the Secretary of the Department of Planning, Industry and Environment is to be assumed under cl 64 of the Environmental Planning and Assessment Regulation 2000.
11. In terms of the other provisions of the LEP, the application is also required to comply with cl 6.21(3) in terms of design excellence. In this regard, an amended Statement of Environmental Effects was submitted with the application which outlines how the proposed development, as amended, exhibits design excellence.
12. Clause 7.15(3) of the LEP contains flood planning requirements. In this regard, a Flood Management Report was submitted which confirms that the development is compatible with the flood hazard of the land and is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties or adverse environmental impacts or costs to the community. The development also incorporates appropriate measures to manage the flood risk.
13. Clause 7.19 has been met in that the demolition is not considered to result in long term adverse visual impact. In this regard, the proposed alterations and additions approved by the Court authorised the demolition of some existing structures on the site. All of the land affected by the demolition will be comprehensively redeveloped under the consent as proposed to be modified
14. The amended proposal utilises high quality materials and exhibits design excellence in accordance with cl 6.21 of the LEP and also satisfies the requirements of SEPP 65 and the Apartment Design Guide.
15. The Council also accepted that the modified development application, and agreed conditions of consent, would protect the amenity of future residents and adjoining properties. By example, a condition is proposed to ensure that the air conditioning condensers comply with the relevant noise criteria and acoustic reports. In this regard, the concerns of the objector have been considered by the Council in coming to the agreement on a modified proposal.
16. Finally, State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) applies to the land. In this regard, a Remediation Action Plan (RAP) has been prepared on the basis the site is identified as being contaminated. However, the RAP indicates that the land will be suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, as required by cl 7(1)(b) of SEPP 55.
17. In this regard, the site is to be remediated before the land is used for that approved purpose as required by cl 7(1)(c) of SEPP 55. This is confirmed by both the RAP and by proposed conditions of consent.

Proceedings 2019/21707 - modification application

1. The Court orders that: 1. The applicant is granted leave to amend the modification application and rely on the documents referred to in conditions 1 and 5 of Annexure "A". 2. The appeal is upheld. 3. The application to modify the development consent D/2015/421 granted by the Land and Environment Court on 2 September 2016 (proceedings 152934 of 2016) is approved subject to the conditions in Annexure "A".

Proceedings 2019/21763 - development application

1. The Court orders that: 1. The applicant is granted leave to amend the development application and rely on: 1. the drawings referred to in condition 1 of Annexure "A", copies of which are behind Annexure "D"; and 2. 'Clause 4.6 - Building Height Development Standard' (September 2019) prepared by Sutherland & Associates Planning. 1. The applicant is to pay the Respondent's costs of $10,000 that were thrown away as a result of the amendment of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of the making of these orders. 2. The applicant's written request under clause 4.6 of the Sydney Local Environmental Plan 2012 (the LEP) seeking a variation of the development control for height of buildings set out in clause 4.3(2) of the LEP is upheld. 3. The appeal is upheld. 4. Development Application D/2018/1314 for alterations and additions to an approved mixed use development (D/2015/421): 1. to convert part of the retained commercial building into four apartments and one live/work apartment; and 2. to change the approved basement including the introduction of car stackers for five additional cars, 1. is approved subject to the conditions set out in Annexure "A". ………………………… Jenny Smithson Commissioner of the Court Proceedings 2019/21707 Annexure A (26.0 KB, pdf) Proceedings 2019/21763 Annexure A (75.5 KB, pdf) Annexure D (4.53 MB, pdf)

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: 02 December 2019