Stanisic v Sydney City Council

Applicant: Mr P McEwen, SC instructed by Mr C Drury of Phillips Fox LEGAL REPRESENTATIVES: Respondent: Mr C Leggatt, barrister instructed by Ms I Ferguson of Maddox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10097 of 2005 Stanisic Associates v Sydney City Council

The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. The conditions are not reproduced as part of this decision but are available for inspection at the Council. A copy the Court's Orders and conditions may be obtained from the Court's registry on payment of a fee. For details of the fee payable and process for obtaining a copy of the Orders and conditions see the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 Senior Commissioner: This is an appeal against the deemed refusal by Sydney City Council (the council) of a development application to demolish the existing building and to construct a new six-to-seven-storey building containing retailing and residential use on lot B DP 3528, known as 24-30 Springfield Avenue, Potts Point.

The site 2 The site has an area of 1,526m2 and two frontages, one to Springfield Avenue to the east and the second to Llankelly Place to the west. There is a fall of 2m from west to east. A 1960s building called the Village Centre now stands on it. 3 The area around the site is a mixture of commercial, retail and residential. The heart of Kings Cross and the railway station are close. A group of seven listed heritage inter-War apartment buildings, ranging from three to ten-storeys, are opposite the site in Springfield Avenue. To the north is a six-storey apartment building, known as Sandringham, at 20-22 Springfield Avenue. To the south is a three-storey building containing a fast food outlet and a backpackers hostel.

The proposal and its history 4 The applicant proposes to demolish the existing Village Centre and to erect a mixed retail and residential building. The building is to contain two basement parking floors, two levels of retailing and 43 apartments on the upper levels. At ground level the proposed building is separated by a through-site link between Springfield Avenue and Llankelly Place. This divides the building into a northern and a southern section. The northern section of the proposal presents to Springfield Avenue as a seven-storey building plus an eighth storey that is set back. To Llankelly Place the northern section presents as six-storey building plus a seventh storey that is set back. 5 The applicant submitted the development application in August 2004. Following notification, the council received 68 submissions. In September 2004 the applicant lodged an appeal (Appeal No 11090 of 2004) to this Court. Watts C heard the appeal on 15 and 16 December 2004, at which time the parties requested consent orders. Commissioner Watts referred two questions of law to the McClellan J. The questions related to the interpretation of height controls in Development Control Plan 97. The first question was whether an additional storey above the height limit had to be under a constructed roof, rather than a theoretical roof plane. The second question was whether the roof plane sprang from the proposed building or from the boundary line. 6 On 16 December 2004 McClellan J heard the matter and answered the first question, to the effect that the additional storey did not have to be under a constructed roof. His Honour did not determine the second question because the parties had reached agreement that the roof plane sprang from the proposed building. This was a change of position for both parties since up to December 2004 they had acted in the belief that the roof plane sprang from the boundary line. As it turns out. the second question placed before McClellan J is not relevant to the determination of this case. This is because on the critical boundary of Springfield Avenue the proposed building is on the boundary. 7 In January 2005 the applicant discontinued the appeal before Watts C determined the matter. In February 2005 the applicant then re-lodged the appeal against deemed refusal, and this is the appeal currently before the Court. In the period between December 2004 and April 2005 the applicant resiled from its position on the second question of law. As I have said, the answer to that question is not critical to this case. 8 The proposal before the Court is the same as the one before Watts C in December 2004.

Relevant planning instruments and policies 9 Local Environmental Plan 1998 zones this site Mixed Uses 10, a zone in which residential and retail uses are permissible. The LEP establishes the Elizabeth Bay Conservation Area. The site is within the conservation area. Development Control Plan 1997 (DCP 97) contains controls such as height and density. State Environmental Planning Policy 65 - Design Quality of Residential Flat Buildings applies; however, the issues arising out of the SEPP are covered by DCP 97.

The issues 10 The council submitted a Statement of Issues containing seven issues. During the hearing the main issues that emerged were height and density expressed as Floor Space Ratio (FSR). The two issues are connected. 11 In the council's submission the northern section of the proposed building significantly breached the height control in DCP 97. As regards density, it was common ground between the parties that the maximum permissible FSR was 3.25:1 (including 0.25:1 bonus for a through-site link), and that the actual FSR of the proposal was 3.54:1.

The objectors 12 During the visit to the site the Court heard the evidence of objectors from seven dwellings. Mr P Cantrill, who lives in unit 31, 7 Springfield Street, said his apartment suffered a loss of view because the building breached the height controls of DCP 97. If the proposal complied, his view loss would be negligible. Ms M Harvey and Mr J Ardas, who live at unit 27, 7 Springfield Avenue, said that they were concerned about excessive height and bulk. Mr J Prior, who lives at unit 25, 11 Springfield Avenue, said that he objected only to elements of the proposal. He mentioned the railing on the roof garden and possible noise that might emanate from it. Mr W McKenna, who is the chairperson of 7 Springfield Avenue, said that the proposal was much bulkier that the existing buildings in the street. Mr T Moyes, who owns unit 33, 123 Macleay Street, said that the solar panels would block his view. He was also concerned about noise from the building and asked that EPA guidelines be imposed on the consent. Ms M Snelling, who lives at unit 25, 123 Macleay Street, endorsed Mr Moyes' objections. Ms R O'Brien, who lives in unit 24, 20-22 Springfield Avenue, said that the proposal showed no respect for the heritage buildings in the street. 13 In my opinion, the crucial impact of this proposal is on the views from Mr Cantrill's apartment.

The Court-appointed expert's evidence 14 The Court appointed Mr D Chesterman, an architect-planner, as the planning expert. Mr Chesterman had provided a report to the Court in the appeal before Watts C (Appeal No 11090 of 2004). In that report he had considered that the breaches of the height control in DCP 97 were minor. He found the FSR of 3.54:1 acceptable, because it had no adverse urban design impacts. He found the proposal, as a whole, acceptable. 15 In the December 2004 hearing Mr Chesterman gave evidence to the effect that the view loss from Mr Cantrill's apartment, while material, was not sufficient reason to refuse the proposal because, apart from minor breaches, the proposal complied with the height control in DCP 97. For the current appeal, however, Mr Chesterman submitted a supplementary report. On further consideration of the height control, he had revised his opinion that the breach of the height control was minor. He came to the view that "the proposed height becomes a major infringement of the height plane defined by the DCP". The building component that was in breach was the top floor of the northern section and it was responsible for the loss of view from Mr Cantrill's apartment. Because the loss of view would be much less with a complying building, he recommended that the top floor of the northern section (level 6) be deleted. He noted that the deletion of level 6 would bring the proposal's FSR close to 3.25:1.

The Court's interpretation of the height control in DCP 97 16 DCP 97 is based on objectives, performance criteria and controls. The objectives of the height control are that buildings: · are appropriate in scale, compatible and complementary with areas of townscape significance, the site and its context; · do not dominate or overshadow the public domain; and · achieve high environmental amenity. 17 The DCP contains performance criteria for height. The relevant criteria are that the height of new buildings: · adopts the predominant height and scale of adjoining buildings and has a similar bulk and mass to the neighbours…; · the bulk is distributed on the site so as to ensure there is no significant loss of amenity to adjacent buildings, public streets and spaces; and · maximises solar access in the public domain and areas of private open space; · for infill development, maintains proportions in relation to street width. 18 The height control, itself, is presented in four paragraphs. The first paragraph says that buildings must not exceed the height specified in the height Control Map, which for this site is 18m. The second paragraph says that where "in exceptional circumstances" the height is varied for infill development, it must not exceed the width of the street plus 1.6m. (Note: the words do not say this; however, when they are combined with what appears to be the likely relevant untitled diagram, this is their meaning.) The third paragraph relates to buildings fronting to lanes. It refers to a diagram that does not exist. When the words are read with what appears to be the likely relevant untitled diagram, they make no sense. While this is unfortunate, nothing turns on it in this case. 19 The fourth paragraph of the height control is critical for this case. It says that in special circumstances council may support a part-storey above the prescribed height limit provided the part-storey is wholly within the 36-degree attic height plane as defined in Figure E3. 20 Three questions arise in the interpretation of this part of the control. The first question is whether an additional floor above the height limit has to be under a constructed roof, rather than a theoretical 36-degree plane. This is the question that McClellan J answered to the effect that the roof does not have to be constructed. 21 The second question is whether the 36-degree plane springs from the proposed building or from the boundary line. McClellan J did not answer this question. At the April 2005 hearing the parties were at issue on this question. In my opinion, the 36-degree plane must spring from the building. Figure E3 clearly shows the plane springing from the eaves of the building. Moreover, the plane is referred to as "36-degree attic height plane". The expression attic plane indicates that it springs from the building, as an attic can exist only as part of a building. 22 As indicated above, on the site's critical boundary at Springfield Avenue the proposed building is not set back, so the 36-degree attic plane is the same whether it springs from the building or the boundary. It is the third question that is critical to the assessment of the application, namely whether there can be more than one part-storey above the height limit within the 36-degree attic height plane. 23 A first reading the attic height plane clause suggests that there can be only one part-storey above the height limit, since the word "part-storey" is in the singular. The applicant's advocate, Mr P McEwen SC, drew my attention to s8 of the Interpretation Act 1987, which states that a reference to a word in the singular form includes a reference to the word in the plural form. The word "part-storey" therefore means also "part-storeys". 24 The problem with the assumption that "part-storey" means also "part-storeys" is that it is inconsistent with Figure E3, the words "attic height plane" and DCP 97's definition of an "attic" as the top storey of a building. There can be only one top storey in a building. In my opinion, to apply the plural of part-storey to the attic height plane clause would be contrary to the tenor of the clause. It would also be contrary to the objectives and performance criteria of the height control, since a building containing two, three or even four part-storeys above the height limit would be alien to the existing buildings of Potts Point. 25 I am strengthened in the above conclusion by the fact that s5(2) of the Interpretation Act 1987 states that the Act applies to an instrument except in so far as the contrary intention appears in the instrument. I note also that in Chalmers & ors v Sutherland Shire Council [1997] NSWLEC 120 Lloyd J found that the presumption that words in the singular include the plural must yield to the context. 26

In my opinion, the height control in DCP 97, when applied to the subject site, says that: · The height of the ceiling of the top floor should not exceed 18m at any point above the natural ground line. · In special circumstances, one (and only one) part-storey (ie a storey with a smaller footprint than the storeys below) may be built above the 18m-height, provided it fits into a 36-degree plane drawn from the building. (The term "special circumstances" is not defined and therefore appears meaningless.) 27 The proposal includes two part-storeys above the 18m-height and they are not wholly within the 36-degree plane. It is therefore in breach of the height control.

Density 28 It was common ground that the proposal exceeds the permissible FSR of 3.25:1. The applicant justified this on the grounds that the lower ground level, which contained a supermarket would have to be constructed in order to allow the car ramp to connect to Basement 1 level. If the supermarket were deleted, the proposal's FSR would comply, though there would be no reduction in the building's bulk. 29 In my opinion, this is a very poor justification. I do not accept the basic premise that the lower ground floor is required for the ramp to connect to Basement 1 level. If the designer had not set out to provide space for a supermarket, the lower ground level could have been used for car parking. I agree with the applicant on one point, however: it would be pointless to delete the supermarket and have an unused floor in the building. Moreover, I do not understand why an unused floor should not be counted as floor space. 30 Mr Chesterman accepted the breach of the maximum FSR because he considered that the building fitted well into its surroundings and provided a positive urban design contribution to the street. This is a more convincing reason for breaching the FSR control, though it begs the question whether a complying building would fit less well into the urban context. In any case, in his supplementary report Mr Chesterman suggested that the top storey of the northern section be deleted. According to my calculations, this would reduce the proposal's FSR to between 3.30:1 and 3.35:1. 31 I do not think that there is a valid reason for a substantial breach of the maximum FSR of 3.25:1. However, given Mr Chesterman's evidence that the proposal is a good design fit, a breach in the order of 2-3% would be acceptable.

Submissions 32 In the council's submission, the proposal should comply fully with the height and density controls of DCP 97. The council would therefore accept the proposal subject to a deferred commencement condition deleting level 6 and the one bedroom apartment at the western end of level 5. This would reduce the FSR to about 3.25:1 and bring the additional part-storey wholly within the 36-degree attic height plane. The council did not agree with Mr Chesterman's recommendation to delete only level 6 because level 5 is not a part-storey and not wholly within the 36-degree attic height plane. 33 In the applicant's submission the proposal should be approved without changes. I have already referred to the submission that part-storey should be read in the plural and the justification for the breach of the maximum FSR. In addition, the applicant relied on the long period of negotiation with council, on the fact that in December 2004 the council had agreed to consent orders, and on the fact that the council's planners as well as Mr Chesterman found the proposal acceptable from an urban design point of view. The sole factor against approval was the impact on Mr Cantrill's views, which, in the applicant's submission, was moderate.

Findings 34 Mr Chesterman's recommendation, to delete the top storey on the northern section, charts a course between the council's and the applicant's positions. In my opinion it is the correct course. 35 I do not think that it is necessary to delete the western apartment on level 5. It is true that without the deletion of that apartment, the proposal fails to achieve full compliance with the height and density controls of DCP 97. However, the breaches would be minor. At the street alignment the building currently continues the parapet line of the adjoining Sandringham building. If level 5 were set back, as the council suggests, the parapet line would not be continued. 36 I have given a great deal of thought to the applicant's submission that level 6 should be permitted to remain. I do not accept that the view from Mr Cantrill's apartment is the only one affected by level 6; other apartments on the western side of Springfield Avenue at the same height as Mr Cantrill's would also experience impact. In my opinion, the impact on Mr Cantrill's view would be significant, rather than moderate. In Tenacity Consulting v Warringah [2004] NSWLEC 140 I set down several principles for the assessment of view impact. One of the principles was that, where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. 37 I agree with Mr Chesterman that the proposal is a major infringement of the height plane defined by the DCP. I also agree with him, that a complying proposal (ie the proposal without level 6) would have little impact on Mr Cantrill's views. I therefore accept his suggestion that the way to render the proposal acceptable is to delete level 6. 38 I have considered the fact that the applicant had lengthy negotiations with the council's planning staff and that the design submitted is a result of what the applicant believed would be acceptable to the council. However, while the applicant clearly does not like the deletion of level 6, the proposal without level 6 still contains slightly above the permissible floor space. It cannot therefore be said that the applicant is unreasonably disadvantaged by the requirement to delete level 6. 39 Because the applicant requested that I should make my findings public before making orders, I read into the record my findings at a mention on 4 May 2004. I suggested that the Court should approve the application subject to a condition that level 6 be deleted. This does not need to be a deferred commencement condition. The drawings of the application are of a good standard and do not leave uncertainties. The deletion of level 6 is a clear and unequivocal requirement that can have only one interpretation. While it will require a re-design of level 5, the most likely re-design will be to amalgamate the four middle apartments into two. However, if the applicant adopts a different configuration, it will have no external impact and neither the council or the Court needs to have a say in it. 40 The parties agreed at the mention on 4 May 2005 that the Court should make orders approving the application subject to the deletion of level 6. Accordingly the formal orders of the Court are below.

Orders

1. The appeal is upheld.
2. Development application to demolish the existing building and to construct a new six-to-seven-storey building containing retailing and residential use on lot B DP 3528, known as 24-30 Springfield Avenue, Potts Point is determined by the grant of consent subject to the conditions in Annexure A, which include the deletion of level 6.
3. The exhibits are returned except Exhibits 4 and B.

      Dr John Roseth
      Senior Commissioner

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