Stamford Property Services Pty Ltd v The Council of the City of Sydney

Land and Environment Court (NSW)|2002-01-15|Before: Bignold J

The Applicant's objection pursuant to SEPP No 1 assumes that cl 35 relevantly limits the floor space of the existing building erected in the subject land and that that clause relevantly applies to the Applicant's proposed development.

The question whether cl 35 applies to the proposed development was not seriously debated or explored in the present case. Although there are obvious difficulties in giving the provisions of subclause (1) a literal construction (because it would mean that every building having a floor space ratio exceeding the maximum ratio now prescribed by cl 35 would contravene the provision with possible legal consequences which again were not explored at the hearing) the Applicant, at the hearing, doubtless for more abundant caution, maintained its objection pursuant to SEPP No 1.

The full text of the Applicant's objection pursuant to SEPP No 1 is annexed hereto and marked "B".

Briefly summarised, the Applicant's objection (i) explains the history of the relevant planning controls as in force when the 1997 development consent was granted for the re-development of the existing building and subsequently, (ii) analyses the proposed development in terms of the stated objectives for the statutory floor space ratio controls contained in cl 34 of the LEP, concluding that all relevant objectives are satisfied; and (iii) notes that because the proposed development does not involve any physical change to the building bulk or floor space of the existing building, the grant of development consent to the proposed development will not establish any adverse precedent, particularly since each of the three existing high rise residential apartment buildings in the immediate vicinity of the appeal site (the "Highgate", the "Observatory Tower" and the "Georgia") involves a similar floor space ratio to that of the existing building erected on the subject land. F. ADJUDICATION ON THE ISSUES RAISED BY THE COUNCIL

The Council's Statement of Issues (Exhibit 1) raises the following eight issues: 1. Whether the proposed development would provide an acceptable level of amenity, to the proposed residential units on levels 1 - 8 of the building, given that: (a) the size; (b) the number of units; and (c) the mix of units are accessible from a common lobby and do not comply with the controls contained in the Central Sydney DCP 1996 ("DCP"). 1. Whether the proposed development complies with the floor space ratio requirements of Central Sydney LEP 1996. 2. Whether the SEPP 1 objection in relation to the floor space requirements of Central Sydney LEP 1996 is well founded. 3. Whether the proposed development provides an acceptable range of residential units on levels 1 -8 of the subject building. 4. Whether the associated change of nature of the use that is proposed by the development application would require an improved level of amenity, having regard to the conversion from serviced apartments to residential units. 5. Whether the proposed development encourages the proper and equitable management of the building which has already been subdivided into two lot stratum subdivision with associated separate lots for parts of the building and indeed whether these separate lots for parts of the building should be in common property, having regard to the change of the nature of the use. 6. Whether the proposed development would create an undesirable precedent in that the proposed residential units on levels 1 - 8 of the building do not comply with the DCP 1996. 7. Whether the proposed development is in the public interest.

I think it is reasonable and convenient to consider in tandem the related Issues 1, 4 and the related 5 and the related Issues 2 and 3 and thereafter to separately consider the remaining three issues.

However, it is logical and necessary to commence my consideration with Issues 2 and 3 because it is only if the Applicant's objection pursuant to SEPP No 1 is upheld that a consideration of the merits of the development application can proceed "notwithstanding the development standard" relevantly imposed by cl 35 of the LEP prescribing the maximum floor space ratios. (i.) ISSUES 2 AND 3 - The proposal's non-compliance with the maximum floor space ratio prescribed by the LEP and the Applicant's Objection pursuant to SEPP No 1.

Although at an earlier stage in the proceedings the Applicant had raised the question of law as to whether cl 35 of the LEP (imposing maximum floor space ratios) applied to the Applicant's development application, as I have earlier mentioned, on the hearing of the appeal the Applicant maintained its objection pursuant to SEPP No 1 in respect of cl 35 of the LEP operating as a relevant development standard. This means that it is conceded for the purposes of the present appeal that cl 35 of the LEP relevantly applies to the proposed development and that in consequence, it is no longer necessary to adjudicate upon the question earlier raised by the Applicant.

Accordingly, the only outstanding question in respect of Issues 2 and 3 is whether the Applicant's SEPP No 1 objection is well founded.

In his Report to the Council's Central Sydney Planning Committee, Mr Kass, the Council's Acting General Manager, expressed the opinion that the Applicant's SEPP No 1 objection was not well founded for the following reasons - (a) The proposal fundamentally changes the nature of the use, despite there being no increase in Floor Space Area; (b) The changed nature of the development is retrograde, given the amenity of the units and their mix does not comply with Council's planning controls; (c) The applicable maximum FSR for the site has decreased to 8:1 since its approval; (d) The maximum FSR for the building was previously achieved based on concessions for the serviced apartment component. This aspect of the development is being removed, and the applicant is still seeking further concessions in a statutory environment where the controls have reduced and become more restrictive.

The Central Sydney Planning Committee adopted in their entirety Mr Kass' recommendations for refusing development consent to the Applicant's development application including his recommendation that the SEPP No 1 objection be held not to be well founded for the reasons he had advanced in his Report.

These reasons for rejecting the Applicant's SEPP No 1 objection were concurred in by Mr Ian Glendinning, Consultant Town Planner, in his Statement of Evidence (Exhibit D) who added the following reasons in support of the same conclusion: I agree with the Council's conclusions and note that the applicant relies totally upon the proposition that the proposed development does not result in any physical changes to the building. The applicant makes no comment about the changed nature of the building should it become residential units. The circumstances relating to the promotion of increased FSR to promote increased opportunities for serviced apartments within the city have changed. The increased intensity of use inherent in this proposal must only be approved upon full compliance with Council's development standards. In the absence of compliance the intensity of use cannot be supported and therefore the SEPP 1 objection in relation to compliance with FSR standard is not supported.

Under cross-examination, Mr Glendinning conceded that the floor space achieved by the approved re-development was not dependent upon the inclusion within the approved development of the serviced apartments component. The same floor space was achievable at the time the 1997 development consent was granted if the whole of the building had been proposed to be used for residential apartments, without there being any component of serviced apartments.

Contrary opinions to those of Mr Kass (who was not a witness) and Mr Glendinning were given in the evidence of Professor Peter Webber (whose Report was Exhibit 3) and Mr Harvey Sanders (whose Report was Exhibit 4) supporting the upholding of the Applicant's SEPP No 1 objection.

Professor Webber expressed the following opinion in par 4.6 of his Report: The State Environmental Planning Policy No 1 Objection as submitted to Council and Court is a comprehensive document which appears to me to set out all the necessary relevant material. The building as it stands complied with floor space ratio requirements of the Central Sydney LEP at the time of its approval (only 31/2 years ago) at a ratio of 15.5:1. it would not comply with the current LEP (Amendment No 8) which permits a maximum ratio of 12:1. The SEPP 1 objection is in my view well founded , but the Issue is in any case somewhat theoretical - in that the building exists whether or not the change in category of dwelling accommodation is approved, and the impact of the proposed change would be negligible.

Mr Sanders expressed the following opinion in pars 5.15 and 5.16 of his Report: 5.15 In my opinion, the arguments for departure from the standard are well founded and the SEPP 1 application should be supported, if, indeed, it is required. I would also note that contrary to the assertion in the Officer's Report to the Central Sydney Planning Committee the proposal does not fundamentally change the nature of the use nor, in my opinion, is the proposed change retrograde. 5.16 Further to the arguments raised in the submitted SEPP 1 objection, the 15.5:1 maximum floor space ratio that was granted to the subject building in the development approval 97/00082, issued on 13 June 1997, was not dependant upon the building including serviced apartments. Indeed, a building containing only residential units could have been approved, at that time, with the same floor space ratio. Therefore, it is important to note that an application could have been made to convert the serviced apartments in the building, with no implications relating to the permissible floor space ratio controls, up until the time Amendment No. 8 to LEP 1996 was gazetted - 3 March 2000.

In my judgment, the Applicant's SEPP No 1 objection is well founded in that it is both unreasonable and unnecessary that the proposed development comply with the development standard comprising the maximum floor space ratio prescribed by cl 35 of the LEP because that development does not involve (i) any change in the floor space already provided in the existing building or (ii) any change to the external appearance of the existing building.

To the extent that the opinions of both Mr Kass and Mr Glendinning are founded on the proposed changed use of the same floor space and their unfavourable evaluation of that changed use, I would respectfully reject those opinions as being wholly based upon an irrelevant consideration. Their opinions concerning the proposed change of use are relevant to other Issues raised by the Council. However, they are no more relevant to the present Issue than is the fact of the present approved use as serviced apartments. Both present and proposed uses are permissible forms of development but both involve floor space in excess of the currently prescribed maximum floor space. The only distinction between the present and proposed uses (and in the present context, it is not a material difference) is that the proposed use, being the subject of a development application that seeks development consent, highlights the exceedance by the building as a whole of the currently applicable maximum floor space ratio. But it is merely the highlighting of a fact that applies to the present use as much as it applies to the proposed use (albeit the present use enjoys the benefit conferred by the EP&A Act, s 109B).

I do not stay to consider what floor space of the existing building relevantly exceeds the currently prescribed maximum floor space ratio. The present case has proceeded upon the common assumption that the excess floor space relevantly is that contained on levels 1 to 8 inclusive. However, this assumption has not been tested or validated. Nor is it self-evidently correct. Somewhat curiously the Council's principal contention on other Issues raised by the case, that levels 1 to 8 inclusive of the existing building constitute the relevant building for the purposes of evaluating the present development application, is silent on this particular issue. If it were applied to the present issue, this would not be a case of the proposed development involving a floor space in excess of the currently applicable maximum floor space ratio.

Accordingly, I find that the Applicants' SEPP No 1 objection is well founded. (ii.) ISSUES 1, 4 AND 5 - Whether the proposal provides an acceptable level of residential amenity in view of its non-compliance with the requirements of the DCP in respect of (i) dwelling mix; (ii) dwelling size; and (iii) maximum number of dwellings per floor

Here again there were competing opinions expressed by Mr Glendinning for the Council and by Professor Webber and Mr Sanders for the Applicant.

Mr Glendinning considered the proposed development's degree of non-compliance with the relevant DCP requirements to be "significant" and that, whether considered as a consequence of that degree of non-compliance, or independently of that consideration, the level of residential amenity of the proposed residential apartments and particularly the studio apartments, was "extremely poor". He opined that the dominance of studio and 1 bedroom apartments (82 per cent of all apartments) was likely to have adverse social impacts on the "Stamford on Kent" apartments and on the Council's objectives for achieving a permanent residential population in the City.

In expressing these opinions, Mr Glendinning considered it appropriate to evaluate the proposed development as being confined to levels 1 to 8 of the existing building as "a stand alone development". His reasons for so concluding adopted the same reasons that had been expressed in Mr Kass's Report to the Central Sydney Planning Committee, namely - (a) While the whole building is physically one, it is functionally and legally two buildings, due to the arrangement of foyers, lifts, and general areas; (b) The different stratums and roles within the building is evidenced by the inability to obtain owner's consent from Stamford on Kent (the apartments on levels 9-25) to an amalgamated allotment; (c) In essence there is no difference between the building being divided in another form, such as buildings next to each other rather than above each other, in which case the unit mix requirements would apply independently to the buildings; and (d) The nature of the use is changing to permanent residential accommodation and it is reasonable to apply requirements aimed at addressing residential amenity and long term planning policies.

Both Professor Webber and Mr Sanders were of the opinion that in considering the DCP requirements for dwelling mix it was appropriate to consider the existing building as a totality. Professor Webber thought that this was a "common sense approach" and Mr Sanders advancing similar reasons, thought that the whole of the existing building, particularly since it was now proposed to be used wholly as residential apartments, was the relevant "planning unit" for the purpose for applying the DCP requirement for mix of dwellings. In particular, both Professor Webber and Mr Sanders thought the fact that the existing building had been historically used for two separate purposes (residential apartments and the Stamford Plaza Hotel) and in that respect had been managed as two separate strata, did not displace or override the proper town planning assessment of the development, as forming a part of an overall residential development contained within one existing building.

In my judgment, it is appropriate to consider the whole of the existing building as providing residential apartment development for the purpose of applying the requirements of the DCP controlling mix of dwellings. This conclusion does not depend upon the proper interpretation of the expression "all residential developments" appearing in cl 6.1.27 of the DCP, yielding that result (although such an interpretive result is legitimately available) because of the existence of the discretion to vary the dwelling mix conferred by cl 6.1.28.

Accordingly, and even accepting the Council's very legitimate interpretation of the expression "all residential developments" in cl 6.1.27 as requiring the conclusion that the proposed development is confined to levels 1 to 8 of the existing building and does not include the whole of the existing building, I am of the opinion that the existence within the same building of the "Stamford on Kent" apartments is a relevant "circumstance of the development" within the meaning of cl 6.1.28 of the DCP.

Moreover, I am of the opinion that that circumstance in and by itself, justifies the exercise of the discretion to vary dwelling mix conferred by cl 6.1.28 on the basis that if regard be had to the mix of units in the "Stamford on Kent" apartments in conjunction with the mix of units in the proposed development, the resulting dwelling mix of those combined developments, as detailed in Table B set forth in par 32 of these reasons, produces virtually total compliance with the requirements of cl 6.1.27 if they were applied to all of the apartments housed in the whole of the existing building.

Another "relevant circumstance" which came to light only during Mr Sanders' oral testimony is the fact that in the existing very substantial residential tower developments in Kent Street, in the vicinity of the appeal site, the "Observatory Tower", "High gate" and the "Georgia" no studio apartments are provided.

Similarly, the approved development for a residential tower building at Nos 159 to 165 Kent Street (directly opposite the appeal site on the northern side of Gas Lane) provides no studio apartments.

Together with the existing building on the appeal site, those existing and approved high rise residential tower developments in that section of Kent Street which adjoins the Millers Point heritage precinct (containing low rise heritage residential development) do form an exclusive enclave of high rise residential development in this section of the City which probably exhausts the potential for high rise residential development in that precinct. The fact that in the many residential apartments so provided, it is only the proposed development that provides studio apartments, is in my opinion, a relevant circumstance in considering the DCP requirements for dwelling mix in the present case.

In so concluding, I do not accept the Council's argument that the phrase "in the circumstances of the development" appearing in cl 6.1.28 limits consideration to features of the proposed development itself.

I think the Council's interpretive approach imposes a narrowness or rigidity, which is unsympathetic to the purpose of conferring a discretionary variation power upon the consent authority where the expressed statutory criterion "inappropriate in the circumstances of the development" is obviously flexible. Whatever be the true meaning of this statutory phrase it is, in my judgment, wide enough to justify an applicant seeking a variation of the requirements for dwelling mix on the two bases advanced by the Applicant on the hearing of the present appeal, namely - (i) that it was appropriate to consider the mix of dwellings contained in the whole of the existing building erected on the appeal site; and (ii) that it was appropriate to consider the mix of dwellings provided by the existing and approved high rise residential apartment buildings located in geographic proximity to the appeal site.

For all of the foregoing reasons, I find that the Applicant has made out its case for a variation in the requirements for dwelling mix prescribed by cl 6.1.27 of the DCP.

Concerning the question of the residential amenity of the proposed residential apartments, both Professor Webber and Mr Sanders expressed the opinion that the apartments offered a high level of amenity. Both were of the opinion that the proposed conversion of use from serviced apartments to permanent apartments did not necessitate an increase in the current level of amenity. Professor Webber noted that the "image of the Central City apartment as a permanent house is often illusory" by virtue of the established phenomena of (i) absent or overseas landlords of tenanted apartments; (ii) owners using apartments as a second house ie a city base; (iii) increasing mobility of owners and frequent turnover of ownership.

Mr Sanders noted that most of the requirements of Part 6 of the DCP did not differentiate between serviced apartments and residential apartments.

It is, I think a matter of considerable significance for the adjudication of these disputed issues that the detailed requirements contained in Part 6 of the DCP apply commonly to residential apartments and serviced apartments. The only differential requirements concern the mix of dwellings for "all residential developments in excess of 20 dwellings" (as prescribed in cl 6.1.27) and for "all serviced apartment developments in excess of 20 dwellings" (as prescribed by cl 6.1.30) - (i) in the case of the former development, the prescribed mix allows a maximum of 15 per cent for studio apartments and a maximum of 30 per cent for one bedroom apartments, whereas (ii) in the case of the latter development, the prescribed mix allows a maximum of 60 per cent for studio/one bedroom apartments.

Doubtless, these differential requirements are directed to the promotion of the DCP's stated strategy "to encourage an increase in the residential population to the City", within the overarching strategy of ensuring "high amenity" for residential development.

In the present case, where I have already found the dwelling-mix of the proposed development to be acceptable, by exercising the power of variation conferred by cl 6.1.28, consideration of dwelling mix does not impinge or impact upon the required evaluation of the residential amenity of the proposed development, in terms of the detailed requirements of the DCP which are all directed to the stated DCP objective of "enhancing the amenity of residential buildings and serviced apartments".

As earlier noted, the proposed development complies with all the requirements of the DCP except for the requirements concerning - (i) dwelling mix; (ii) dwelling size; and (iii) dwellings per floor.

It may be noted that the present use as serviced apartments also fails to comply with those same three requirements, yet those serviced apartments are rated as five star hotel accommodation and obviously provide a very high level of amenity.

I have already dealt with the dwelling mix requirement of the DCP. This means that the proposed development does not comply with the two remaining requirements ie (i) dwelling size; and (ii) dwellings per floor.

The requirement in respect of the latter is subject to the variation power conferred by cl 6.1.37. In my judgment, the Applicant has demonstrated, through the evidence of Professor Webber and Mr Sanders (which I accept) that there is "a high level of amenity of the common lobby, corridors and units". Accordingly, I am satisfied that the variation power should be exercised in favour of the Applicant, noting that the proposal involves a slight improvement in terms of compliance, compared with the present use of the same floors as serviced apartments by virtue of reducing the overall numbers from 143 to 128 apartments.

The requirements for dwelling sizes prescribed by cl 6.1.34 are not the subject of any discretionary variation power. Accordingly, they are absolute requirements. I have earlier set out the sizes of the proposed 128 apartments (see Table C at par 33 of these reasons) and I have in pars 34 to 36 analysed the nature and degree of non-compliance with the prescribed sizes.

I find these non-compliances to be minor and arithmetic more than substantive, and as I have earlier stated, if the balcony floor space to each of the studio apartments is brought into account, only one of the 45 studio apartments would have an area less than the prescribed minimum area of 40 m2.

Although balcony floor space is expressly excluded from the calculation (vide cl 6.1.35), nonetheless the existence of a balcony to each of the studio apartments contributes to their residential amenity.

In terms of amenity, I accept the evidence of Professor Webber and Mr Sanders that the residential amenity of the proposed apartments (including the studio apartments) is high, despite the fact of non-compliance with the prescribed minimum dwelling sizes.

No doubt the proposal could be redesigned to achieve a result where the minimum dwelling sizes are entirely complied with. However, this would mean that the ready conversion of the existing 143 studio serviced apartments into 128 residential flats as is now proposed, would not be achieved and that there would be a waste of the present resources comprising the existing serviced apartments and their internal fit out.

It may be accepted that the value of the wasted resources would not be excessive or disproportionate compared with the value of the finished product, but nonetheless, there would be a wastage of existing resources and that wastage is not insignificant in itself. More to the point is the question whether compliance with the minimum dwelling size requirements would result in an appreciable increase in residential amenity, particularly in circumstances whether the prescription by the DCP of minimum dwelling sizes is obviously arbitrary, as attested by the documentary evidence (Exhibit J).

Ultimately, I am satisfied that the degree of non-compliance with the prescribed minimum dwelling sizes is insignificant and does not involve any appreciable element of loss or diminution of the residential amenity of the proposed apartments.

This leaves the question whether the studio apartments should provide some element of additional amenity over and above that provided by the current serviced apartments (the residential amenity of which is acknowledged to be of the highest order, as may be expected of accommodation enjoying a five star hotel rating).

Significantly any justification for enhanced amenity of residential apartments (because they will provide more permanent residential accommodation than that provided by serviced apartments) must be sought beyond the terms of Part 6 of the DCP because not only does it prescribe common requirements for residential apartments and serviced apartments in furtherance of the stated strategy and objectives of the DCP ("to ensure that residential buildings will be of high amenity" "to enhance the amenity of residential buildings and services apartments") but it requires serviced apartments to have "a comparable level of amenity to residential buildings so that any subsequent conversion of serviced apartments to permanent residential stock is not constrained by poor amenity".

In my judgment, the proposed development is entirely consistent with the stated strategy and objectives in Part 6 of the DCP.

In these circumstances, to require greater residential amenity for the proposed converted use, because residents will be more permanent than transitory, appears to me to be very difficult to justify. Again on this issue, I prefer the opinions of Professor Webber and Mr Sanders to the competing opinion of Mr Glendinning.

For all the foregoing reasons, I find that the amenity of the proposed residential apartments will be acceptable in the sense of being comparable to the high amenity enjoyed by the current use as serviced apartments. (iii.) ISSUE 6 - The disadvantages of there being two separate Strata Schemes for two separate strata of the building

Interestingly, this issue does not form the basis or grounds for the Council's determination refusing development consent.

However, it remained an issue at the hearing, probably because of the evidence that was given on behalf of the Owners' Corporation of the "Stamford on Kent" apartments and various proprietors of some of those apartments.

That evidence indicates that no attempt has been made by the Applicant to amalgamate or merge the two separate strata schemes that exist in respect of different portions of the existing building. It also indicates that there is opposition to the proposal inasmuch as it will (i) result in the elimination from the building of the Stamford Plaza Hotel with the various services provided by that hotel which are commercially available to the owners and occupiers of the "Stamford on Kent' apartments; and (ii) probably increase the patronage of the Health Club with the prospect of higher contributions being required of the owners of the "Stamford on Kent" apartments towards the capital replacement costs and operational costs of the Club.

Some proprietors of the "Stamford on Kent" apartments apprehended that the value of their apartments would be diminished on account of the elimination from the building of a prestigious five star hotel and there was a suggestion that it was the existence of the hotel within the building that provided an inducement for the purchase of the apartments on "Stamford on Kent".

In my judgment, the matters raised by the Owners' Corporation and various owners of apartments in the "Stamford on Kent" apartments do not militate against the planning rationale for the proposed conversion of the serviced apartments into residential apartments. Nor do they justify refusal of development consent to the proposed development.

The content of the Strata Management Statement revealed the possibility of the Stamford Plaza Hotel ceasing to exist and the conversion of that development into another form of development such as is now proposed.

The Statement's content relating to the distribution of financial obligations between the two separate strata likewise recognises the possibility for a different form of development to be undertaken on the stratum comprising the Stamford Plaza Hotel.

Whereas there is nothing in the Statement that is rendered inapplicable by the coming into existence of the proposed development in lieu of the existing Stamford Plaza Hotel, there is nothing in the proposed development that would preclude merger of the two separate strata schemes if that were considered a desirable outcome in terms of Strata Schemes (Freehold Development) Act 1973.

What is more relevant is the question whether there are sound or compelling town planning reasons that dictate or mandate a change in the existing arrangements in force under the Strata Schemes (Freehold Development) Act 1973.

Mr Glendinning considered that there was a need to create an easement in respect of the use by the owners/occupiers of the proposed development of the emergency lift (part of the bank of lifts servicing the "Stamford on Kent" apartments and the lift lobby on the ground floor).

However, the emergency lift is included in the "shared facilities" in terms of the Strata Management Statement and it would appear that there is no reason to require the creation of an appropriate easement in respect of the use of that emergency lift. It is available to the serviced apartments and its ongoing availability to the proposed development appears to be secured by the terms of the Strata Management Statement.

The proposed development will bring into much closer harmony the use of the whole of the residential accommodation provided by the existing building and I accept the opinions of Professor Webber and Mr Sanders that the proposed development is, on that account, likely to assist in the overall management of the building.

For all the foregoing reasons, I find that the proposed development has no adverse consequences for the present and future arrangements for the Strata management of the building erected on the appeal site. Whether there is ultimately to become one strata scheme is a matter for the respective owners' corporations and the proprietors of all of the apartments contained within the existing building. (iv.) ISSUE 7 - The precedental effect of consent being granted to a development that does not comply with the DCP requirements

Mr Glendinning was of the opinion that the grant of development consent to the proposed development would undermine the development controls prescribed by the DCP and hinder the achievement of the Council's objectives for encouraging more permanent residents living in the City.

Both Professor Webber and Mr Sanders disagreed.

In my judgment, the grant of development consent to the proposed development will not create an adverse planning precedent for the following reasons - (i) The proposed development accords with the DCP's stated Strategy and Objective for enhancing residential amenity and encouraging more permanent residents to live in the City; (ii) Although the proposal does not comply with three of the numerous development requirements prescribed by the DCP in respect of two of those requirements, the proposal justifies variation of the requirements, conformably to the power of variation expressly conferred by the DCP. Accordingly, in respect of those two requirements, the proposal is to be regarded as being conformable to the requirements. In respect of the only requirement (minimum dwelling size) with which the proposal does not comply, and for which there is no power of variation, the proposal substantially complies with the minimum sizes prescribed, but more importantly fulfils the DCP's express strategy and objective of providing high residential amenity development and of enhancing residential amenity. (iii) The factual circumstances pertaining to the proposed development are unusual (eg the existence of two separate strata schemes for different portions of the same building) and are not likely to be replicated to any significant degree - hence any scope for precedental effect is low. (v.) ISSUE 8 - The Public Interest

No element of the public interest other than that inherent in the other Issues raised in this case, has been sought to be established by the Council.

My findings on each of the other Issues deal with all facets of those Issues, including the public interest element inherent in them.

The two most cogent Issues involving a high level of public interest pressed by the Council in the present case concern - (i) the proposal's non-compliance with three specific requirements of the DCP; and (ii) the importance of the requirements of the DCP in promoting the Council's adopted residential strategy and objective of ensuring high amenity residential accommodation that encourages the growth within the City of permanent residents.

For the reasons already given, I have found that there is justification for varying two of the relevant requirements of the DCP conformably to the powers of variation expressly conferred by the DCP and that in respect of the other requirement, for which no express variation power is conferred, the proposal substantially complies with the requirement and does so in a manner that fulfils the stated strategy and objective of Part 6 of the DCP to enhance residential amenity in the City.

In the light of those findings, I have concluded that the granting of development consent to the proposed development will not create any adverse planning precedent (this being a separate aspect of public interest).

In the result, I am satisfied that the detailed requirements of Part 6 of the DCP are either (i) fully complied with; or (ii) substantially complied with. Accordingly, the present case does not involve any significant disregard of, or departure from, the detailed requirements of the DCP.

Moreover, I have found that the proposed development is consistent with the DCP's stated strategy and objective for enhancing residential amenity and encouraging a permanent resident population in the City.

For all these reasons, the proposal does not, in my judgment, involve any injury or detriment to the public interest. G. CONCLUSIONS AND ORDERS

For all the foregoing reasons, the appeal must be upheld and development consent be granted, subject to appropriate conditions. Those conditions have been virtually settled by the parties. Leave will be given to bring in short minutes including the full complement of conditions that are appropriate to be imposed.

Accordingly I make the following orders: 1. Appeal allowed. 2. Development consent granted, subject to appropriate conditions. 3. The parties shall bring into Court appropriate conditions within 21 days of today. In the event of disagreement on any of the conditions, the parties have liberty to restore the matter for my adjudication on three days' notice. 4. Exhibits be returned. 5. No order as to costs.

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.

CITATION : Stamford Property Services Pty Ltd v The Council of the City of Sydney [2002] NSWLEC 8 APPLICANT: Stamford Property Services Pty Ltd PARTIES : RESPONDENT: The Council of the City of Sydney FILE NUMBER(S) : 10699 of 2001 CORAM: Bignold J KEY ISSUES: Development Application :- Development appeal-Converting serviced apartments to residential apartments-SEPP No 1 objection in respect of maximum floor space ratio-non-compliance with DCP requirements LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 97Strata Schemes (Freehold Development) Act 1973, s 7(2A) CASES CITED: DATES OF HEARING: 14 and 15 January 2002 DATE OF JUDGMENT: 02/01/2002

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