Strand Estates Pty Ltd v North Sydney Council [2013] NSWLEC 1004 | Case summary | Zoe

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Strand Estates Pty Ltd v North Sydney Council

[2013] NSWLEC 1004

Land and Environment Court (NSW)|2012-12-05

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2012-12-05

Source

Original judgment source is linked above.

Judgment (13 paragraphs)

[1]

Judgment 1COMMMISSIONERS: This is an appeal against the refusal by North Sydney Council (the council) of Development Application No, 467/11 for the demolition of all existing improvements and the construction of a mixed commercial/residential development at the corner of Berry Street and Pacific Highway, North Sydney (the site). 2The mixed commercial/residential development consists of:

6 basement levels to accommodate 96 car parking spaces,
1405 sq m of commercial space,
41 serviced apartments, and
101 residential apartments, made up of 29 studio apartments, 7 x 1 bedroom apartments, 55 x 2 bedroom apartments and 10 x 3 bedroom apartments. 3The proposed building has 23 levels (RL 149.5 excluding the plant levels or RL 156 including the plant levels) to the Pacific Highway frontage and 21 to 23 levels to Berry Street because of the sloping topography of the site. The building also has stepped building setbacks to the west at levels 12 and 19. 4The contentions raised by the council relate to:

whether the scale, form and massing of the building is acceptable within the context of the locality and neighbouring development, specifically the lower scale residential development around Doohat Avenue to the west,
whether the design of the building is acceptable because of the absence of a setback above the podium level on the Berry Street and Pacific Highway corner,
whether the internal amenity of some apartments is acceptable because of : 3.1 the amount of south facing apartments, 3.2 the acoustic, solar access and cross ventilation impacts associated with units that face the lightwell, and 3.3 the internal layout brought about by the location of the lift.

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[3]

Relevant planning controls 6The site is within the Mixed Use Zone under North Sydney Local Environmental Plan 2001 (LEP 2001). The proposed use is permissible with consent within this zone. Clause 14 provides that when considering a development application the aims and objectives in the plan must be taken into account (cl 14(1)) and consent must not be granted unless the development is consistent with the specific aims of the plan, the objectives of the zone or the objectives of controls (cl 14(2)). 7The relevant general aim of the plan, in cl 2, is: (b) development that is appropriate to its context and enhances the amenity of the North Sydney community and environment, and 8The relevant specific aims of the plan, in cl 3, are: a) in relation to the character of North Sydney's neighbourhoods, to: (i) promote the character of the neighbourhoods and development which is compatible with neighbouring development in terms of bulk, scale and appearance, and (b) in relation to residential development, to: (i) protect and enhance the residential use and amenity of existing residential neighbourhoods and new residential development, and (ii) maintain and provide for an increase in dwelling stock, where appropriate, and (iii) prevent the expansion of non-residential uses in residential neighbourhoods, and 9The relevant zone objectives are: a) encourage a diverse range of living, employment, recreational and social opportunities, which do not adversely affect the amenity of residential areas, and (b) create interesting and vibrant neighbourhood centres with safe, high quality urban environments with residential amenity, and (c) maintain existing commercial space and allow for residential development in mixed use buildings with non-residential uses at the lower levels and residential above, and 10Division 4 applies to the North Sydney Centre, in which the site is located. Clause 28D states: 28D Building heights and massing (1) Building heights and massing objectivesThe specific objectives of this clause are as follows: (a) to achieve a transition of building heights generally from 100 Miller Street (Northpoint) and 79-81 Berry Street (being the location of the tallest buildings) stepping down towards the boundaries of the North Sydney Centre, (b) to promote a height and massing that has no adverse impact on land in the public open space zone or land identified as a special area on Sheet 5 of the map marked "North Sydney Local Environmental Plan 2001 (Amendment No 9)-North Sydney Centre" or on heritage items, (c) to minimise overshadowing of land in the residential and public open space zones or identified as a special area on Sheet 5 of the map marked "North Sydney Local Environmental Plan 2001 (Amendment No 9)-North Sydney Centre", (d) to protect the privacy of residents within and around the North Sydney Centre, (e) to promote scale and massing that provides for pedestrian comfort, in terms of weather protection, solar access and visual dominance, (f) to encourage consolidation of sites for provision of high grade commercial space and provision of public benefits. (2) Building heights and massing controlsConsent must not be granted to the erection of a building within the North Sydney Centre, unless: (a) the height of the building will not exceed RL 195 AHD, and (b) there is no net increase in overshadowing of any land between the hours of 9am and 3pm, 21 June outside the composite shadow area, as shown on the map marked "North Sydney Local Environmental Plan 2001 (Amendment No 9)-North Sydney Centre" (except land that is in the Road or Railways Zone), and (c) there is no net increase in overshadowing, between 10am and 2pm, at any time of the year, of any land that is within the North Sydney Centre and is within the public open space zone or within a special area as shown on Sheet 5 of the map marked "North Sydney Local Environmental Plan 2001 (Amendment No 9)-North Sydney Centre", and (d) there will be no increase in overshadowing that would reduce the amenity of any dwelling that is outside the North Sydney Centre and falls within the composite shadow area referred to in paragraph (b), and (e) the site area is not less than 1,000 square metres. (3) State Environmental Planning Policy No 1-Development Standards does not apply to a requirement made by subclause (2) (a), (b) or (c) (including a requirement varied under subclause (4)). (4) Minor variation of overshadowing controlsThe consent authority may make a determination to vary, to a minor extent only, the operation of subclauses (2) (b) or (c), or both, in respect of a particular development application, but only if: (a) it is satisfied that the variation is justified due to the merits of the development application and the public benefit to be gained, and (b) it is satisfied that any increase in overshadowing will not reduce the amenity of any land, and (c) in relation to a variation of the operation of subclause (2) (b), the variation will result in not more than 2 hours net increase in overshadowing of land referred to in that paragraph between the hours of 9am and 3pm, 21 June, and (d) in relation to a variation of the operation of subclause (2) (c), the variation will result in not more than 15 minutes net increase in overshadowing of land referred to in that paragraph between the hours of 10am and 12 noon, and no net increase between the hours of 12 noon and 2pm, on any day. (5) Building design and public benefitsWhen determining whether or not to grant consent to a development application in respect of land within the North Sydney Centre, the consent authority must consider: (a) the impact of the proposed development in terms of scale, form and massing within the context of the locality and landform, the natural environment and neighbouring development and in particular lower scale development adjoining the North Sydney Centre, and (b) whether the proposed development provides public benefits such as open space, through-site linkages, community facilities and the like, and (c) whether the proposed development preserves important view lines and vistas, and (d) whether the proposed development enhances the streetscape in terms of scale, materials and external treatments, and provides variety and interest. 11Clause 29 provides requirements for building height. Clause 29(1) provides building height objectives and cl 29(2) provides that a building must not be erected in the Mixed Use zone in excess of the height shown on the map. As no height is shown on the map for the site, it was agreed that there are no height limits, pursuant to cl 29. Clause 30 provides requirements for a building height plane. Clause 30(1) provides building height plane objectives and cl 30(2) provides details for the application of the building height plane. It was agreed that cl 30 has no application in this case (see Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164 at (63)). 12Clause 31 provides requirements for the mix of floor space in the Mixed Use zone and specifically, a floor space ratio (FSR) range for non-residential purposes. In this case, the range is 3:1 - 4:1. As the proposed development has a non-residential FSR of 2.65:1, an objection under State Environmental Planning Policy No.1 - Development Standards (SEPP 1) was submitted to show that strict compliance with the development standard was not necessary. The council considered the objection acceptable. Having reviewed the SEPP 1 objection, we also concur with the council and agree that strict compliance with the development standard is unreasonable and unnecessary in the circumstances of the case. 13North Sydney Development Control Plan 2002 (the DCP) applies to the site. Section 6 applies to Mixed Use Development. Section 6.2 addresses Environmental Criteria and relevantly, cl 6.2 d addresses Visual Privacy and s 6.2 j addresses Solar access. Section 6.3 addresses Quality built form and relevantly cl 6.3 a addresses Context, cl 6.3 d addresses the Junction and termination of streets and cl 6.3 k addresses Street frontage podium. Clause 6.4 addresses Quality urban environment and relevantly cl 6.4 a addresses High quality residential accommodation and cl 6.4 a.a. addresses Lightwells and Ventilation. 14The DCP provides Character Statements. The site is within the North Sydney Centre Planning Area and there is a specific character statement for this area. The site falls within that part of the North Sydney Centre Planning Area identified as the Central Business District (CBD). The CBD has specific requirements at cl 1.1. Clause 1.1 f a addresses Building Heights, cl 1.1 h addresses Skyline and requires at cl 1.1 h i. that: Buildings step down in height from the tallest buildings, being Northpoint (100 Miller Street) and Shopping World (79-81 Berry Street) to the boundary and surrounding residential areas (see fig 1.1 and fig 2.2)). 15Figures 1.1 and 1.2 show two arcs (the notional arcs) showing curving down in height across the CBD, along Miller Street and Berry Street from the centre of the CBD to the edges of the CBD. The outlines of buildings are shown in relation to the notional arcs. Clause 1.1 k addresses Setbacks, cl 1.1 l addresses Street frontage podium height and cl 1.1 m addresses Above podium setbacks, street frontage. 16State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (RFDC) (cl 30(2)(c)). 17The relevant design quality principles in Part 2 are: 9 Principle 1: Context Good design responds and contributes to its context. Context can be defined as the key natural and built features of an area. Responding to context involves identifying the desirable elements of a location's current character or, in the case of precincts undergoing a transition, the desired future character as stated in planning and design policies. New buildings will thereby contribute to the quality and identity of the area. 10 Principle 2: Scale Good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings. Establishing an appropriate scale requires a considered response to the scale of existing development. In precincts undergoing a transition, proposed bulk and height needs to achieve the scale identified for the desired future character of the area. 11 Principle 3: Built form Good design achieves an appropriate built form for a site and the building's purpose, in terms of building alignments, proportions, building type and the manipulation of building elements. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook. 12 Principle 4: Density Good design has a density appropriate for a site and its context, in terms of floor space yields (or number of units or residents). Appropriate densities are sustainable and consistent with the existing density in an area or, in precincts undergoing a transition, are consistent with the stated desired future density. Sustainable densities respond to the regional context, availability of infrastructure, public transport, community facilities and environmental quality. 15 Principle 7: Amenity Good design provides amenity through the physical, spatial and environmental quality of a development. Optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural ventilation, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas, outlook and ease of access for all age groups and degrees of mobility. 18Draft North Sydney Local Environmental Plan (the draft LEP) is relevant having been advertised however there was agreement that the draft LEP was not imminent or certain.

[4]

The evidence 19Evidence for the council was provided by Mr Geoff Mossemenear, a town planner employed by the council and Mr Geoff Baker, an architect and urban designer. Evidence for the applicant was provided by Ms Deborah Laidlaw, a town planner, and Ms Gabrielle Morrish, an architect and urban designer. There was a degree of overlap in the evidence of the town planners and the urban designers on the issue of height and the consequent issue of scale, form and massing of the building. 20Mr Mossemenear states that the "notional arcs" referred to in Figure 1.1 and Figure 2.2 are not defined in LEP 2001 or the DCP. The notional arcs are not to scale and have no heights. They are a skyline consideration only as it compares a proposal to the context of the whole CBD skyline when viewed from a distance. The notional arcs cannot be used to interpolate height on the subject site and relied on as it would be necessary to make assumptions that are not stated or provided in the character statement. The only assumptions that can be made are firstly, development must be totally consistent with the objectives and controls in LEP 2001 and secondly, development must have regard to existing building heights. Mr Mossemenear states that the notional arcs are a matter to be considered after the proposal is found to be acceptable under the objectives and controls in LEP 2001 and SEPP 65 considerations. 21In his opinion, the proposal is too high in the context of its locality. The scale and massing is unsatisfactory with regard to visual prominence for nearby residential areas, and as such it is inconsistent with cl 28D(5)(a). 22Mr Baker states that the building, at 23 storeys plus plant room, will visually dominate the low scale residential buildings to the north-west of the site that comprises mainly of residential dwellings of one and two storeys. To highlight his concerns, Mr Baker has prepared a number of sight lines that show how an observer, at the centre of the Doohat Crescent cul-de-sac, would see the proposed building in relation to the height of the existing and approved buildings. The purpose of this diagram is to quantify the visual dominance of the proposed building in its context. The sight line diagrams are used to determine the maximum height of a building on the site so that a building would not appear taller than other buildings in the CBD from Doohat Crescent. This approach adopts the thesis that the proposed building will not be visually dominant if it appears no higher than other existing or approved developments in the visual catchment in which it would be seen. Based on these sight lines, Mr Baker concludes that the roof level should be no more than RL 136 to its roof, with plant room above. This would have the effect of reducing the number of storeys from 23 to 18. 23Ms Laidlaw maintains that there are two different types of building height objectives within LEP 2001 and the DCP. The first provides an absolute maximum height of RL195 and is supported by the "notional arcs" and by objectives relating to a stepping down of height to the edges of the CBD. This objective is concerned with urban form of the CBD and its skyline profile and a desire to have the two identified buildings (Northpoint (100 Miller Street) and Shopping World (79-81 Berry Street)) in the middle, transitioning down to lower buildings at the edges of the CBD. Any skyline assessment is best based on a maximum level and the notional arcs. The second objective is concerned with how buildings, at the edges of the CBD, impact on special areas, heritage items/area, residential areas beyond the limit of the centre. The amenity objectives in LEP 2001 provide controls relating to overshadowing, privacy and general amenity impacts. Any assessment is best based on the height of a building measured in metres or number of storeys above ground level. 24In this case, there is no dispute that the proposed building satisfies the skyline requirements of a maximum height of RL 195 AHD and the notional arcs. On this basis, Ms Laidlaw concludes that the key difference with the Mr Mossemenear is the relatively small area of whether the scale and massing of the development, expressed as its height, is appropriate in terms of how the building would be perceived from surrounding residential areas. Ms Laidlaw notes that nowhere in LEP 2001 or the DCP is there any guidance in addressing this area of disagreement, and specifically what would be an appropriate height in metres or storeys at the edges of the CBD. While accepting that the suite of Court decisions on the Castle Construction site (136-140 Walker Street) has some relevance, it is necessary to take care in adopting the findings to the subject site because it is topographically at a significantly greater elevation than the Castle Construction site. To be of any relevance, it is necessary to firstly understand what was approved on the Castle Construction site (RL 132.5) in metres above ground level or number of storeys and secondly, the relative elevation and proximity of the residential buildings on the opposite side of Walker Street, being the nearest residential development outside the CBD. If this assessment is carried out (see p 20, Exhibit 3), it is obvious that the scale relationship between the mixed use building on the Castle Construction site and the adjoining residential development is more severe and overbearing than the proposed development and the adjoining residential development in Doohat Avenue because the separation distance is around 29 m for the Castle Construction site compared to around 83 m for the subject site, given that the two buildings have approximately the same height above ground level. 25Overall, Ms Laidlaw states that the proposed building presents a reasonably compatible transition, compared to other buildings existing, proposed or under construction, at other locations around the periphery of the CBD. In her opinion, the scale relationship is appropriate between the proposed buildings and the residential buildings in Doohat Avenue and consistent with what would be expected at the edges of a major commercial centre. 26Ms Morrish does not accept the sight line approach adopted by Mr Baker in his assessment of scale, form and massing and his conclusion of visual dominance. The proposition that the subject building would not appear to be visually dominant if it appears to be no higher than the existing or approved development against which it will be seen is not based on any objective, control or requirement within LEP 2001 or the DCP. LEP 2001 discusses achieving a transition from the CBD to adjoining areas but nowhere does it state that the viewer should never see edge buildings as being viewed below the highest development in the CBD. A study of buildings around the edge of the CBD show that this is not the case and would in fact be almost impossible to achieve. 27Ms Morrish notes that the tall component of the proposed building has been located on the corner of Berry Street and the Pacific Highway. The height of the building at Doohat Lane (where the development comes closest to any residential development) is only 11 storeys and is a similar height to the approval at 12-16 Berry Street. The tower component is located a further 11.92 m further to the east from the boundary with 12-16 Berry Street and as well as being approximately 20 m away from the rear boundary of the first residential lot to the south. In her opinion, the distance removes the main massing of the building away from the residential zone. While the top floors, towards the Pacific Highway, will be seen from the residential areas to the north west, this view will be no different to the other tall buildings in the CBD and a normal circumstance associated with the interface between a major commercial centre and the adjoining residential area. Ms Morrish notes that no component of the proposed building creates any unacceptable amenity impacts, such as overshadowing and loss of privacy, on any residential property.

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The relevant planning controls 28The planning documents provide both quantitative and qualitative criteria. Of the quantitative controls, cl 29(2) and the height map, provides no assistance despite the opportunity to identify a height of a building on the site, expressed as "maximum height in metres". Clause 28D(2)(a) provides "the height of the building will not exceed RL 195 AHD". This clause expresses a height in relation to Australian Height Datum (AHD) and not the height of a building above ground level. There was no dispute that the proposed development satisfies this requirement. 29Clause 28D(2) also requires that the height of a building create no net increase in overshadowing of any land at specified times outside the composite shadow area (cl 28D(2)(b)), no net increase in overshadowing at specified times within the North Sydney Centre and within the public open space zone or within a special area (cl 28D(2)(c)) and no increase in overshadowing that would reduce the amenity of any dwelling that is outside the North Sydney Centre and falls within the composite shadow area (cl 28D(2)(d). There was agreement that the proposed development satisfies these overshadowing requirements so the opportunity to vary, to a minor extent only, the operation of subclauses (2) (b) or (c), or both, in respect of a particular development application, under s 28D(4) is not necessary. 30Clause 1.1 fa addresses Building Heights in the CBD. The clause reiterates the requirements in cl 29(2) at cl 1.1 fa. Clause1.1 h addresses Skyline and requires that "Buildings step down in height from the tallest buildings, being Northpoint (100 Miller Street) and Shopping World (79-81 Berry Street) to the boundary and surrounding residential areas (see fig 1.1 and fig 2.2)". 31The qualitative controls are found in cl 28D(5). The sub clause states that when determining whether or not to grant consent to a development application, the consent authority must consider a number of matters. These are the impact of the proposed development in terms of scale, form and massing within the context of the locality (cl 28D(5)(a)), whether the proposed development provides public benefits (cl 28D(5)(b)), whether the proposed development preserves important view lines and vistas (cl 28D(5)(c)) and whether the proposed development enhances the streetscape (cl 28D(5)(d)). 32It was agreed that the considerations in cl 28D(5) would not warrant the refusal of the application with the exception of cl 28D(5)(a) where the council experts maintain that the impact of the proposed development has such unacceptable scale, form and massing impacts on lower scale development to the north west, around Doohat Avenue that it warrants the refusal of the application. The applicants experts come to the opposite conclusion. 33Clause 28D(5)(a) states: (a) the impact of the proposed development in terms of scale, form and massing within the context of the locality and landform, the natural environment and neighbouring development and in particular lower scale development adjoining the North Sydney Centre, and

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Findings - is the scale, form and massing acceptable? 34With the benefit of the site inspection, an understanding of the planning controls and the architectural plans, we accept the conclusions of the applicants experts for a number of reasons. First, we do not accept the approach of Mr Mossemenear that the notional arcs cannot be used to interpolate height on the subject site or that the notional arcs should only be considered after the proposal is found to be acceptable under the objectives and controls in LEP 2001 and SEPP 65 considerations. The notional arcs in cl 1.1 h form are an important requirement for height and gain further importance where specific reference is made to achieving a transition of building heights from the taller buildings in the centre of the CBD to the boundaries in cl 28D(1)(c) of LEP 2001. This can only be reference to the more specific controls in cl 1.1 h of the DCP. In our view, it is also unnecessary to have the ability to accurately scale from Figures 1.1 and 1.2 to understand the objective of a transition of building heights to the edge of the CBD. In any event, there was no dispute that the proposed building was well below the notional arcs in Figures 1.1 and 1.2. 35There is also no basis for the approach adopted by Mr Mossemenear that preference should be given to the qualitative controls over the notional arcs. We agree with Ms Laidlaw that the DCP and LEP 2001 controls relate to two different types of building height objectives, being firstly, the skyline objectives with an absolute maximum height of RL195 and the notional arcs and secondly by specific standards and objectives to address potential amenity impacts on lower density development outside the CBD. 36Second, we do not accept the approach adopted by Mr Baker fairly or reasonably addresses the assessment of impact on nearby residential properties in terms of scale, form and massing because:

LEP 2001 and the DCP do not suggest that all buildings within the CBD should not, when viewed from areas outside the CBD, be seen as exceeding the height of Northpoint or Shopping World,
the use straight sightlines is inconsistent with the curved notional arcs in the DCP,
the approach gives no weight to the numerical height requirements in LEP 2001,
the conclusions are of limited value as they relate to only an individual location in the centre of the Doohat Crescent cul-de-sac. Totally different results would be achieved if a location was chosen, for example, in Doohat Crescent closer to the Pacific Highway, and
this approach has not been used by the council in any prior assessment of scale, form and massing from the CBD on nearby residential properties in the past. 37Third, we are satisfied that genuine attempts have been made to minimise the impact on nearby residential properties in terms of scale, form and massing through the design that setbacks the upper level of the building in the area that benefits the residential properties in a general area of Doohat Crescent. 38Fourth, we agree with Ms Laidlaw that, in practical terms, there is always likely to be a difference in scale, form and massing at the interface between two different zones, particularly in this case, given the regionally significant status of the North Sydney CBD and the relatively low density of the adjoining residential development. We are satisfied that given the reasonable separation of the site from the nearby residential developments that the difference in scale, form and massing is acceptable. The argument by Ms Laidlaw that the relationship between the proposed development and the nearby residential properties is more acceptable and desirable in terms of scale, form and massing than the relationship between the residential properties opposite the approved Castle Construction development at 136-140 Walker Street because of the greater separation distance has some merit (see diagram p20 - Exhibit 3). 39Fifth, the experts agree that there are no amenity issues, such as overlooking or overshadowing that warrant the refusal of the application, notwithstanding the stringent requirements in cl 28D(1) and (2). 40For the reasons mentioned in the preceding paragraphs, we are satisfied that, pursuant to cl 28D(5)(a), the proposed development will not unacceptably impact on the lower scale development adjoining the North Sydney Centre in terms of scale, form and massing. 41Pursuant to cl 14(1) and after taking into account the aims and objectives in the plan, I find that there are no reasons why the development application should be refused. Pursuant to cl 14(2) we find that the development is consistent with the relevant specific aims of the plan, the relevant objectives of the zone or the objectives of controls. 42Pursuant to cl 30 of SEPP 65 and after considering Principles1, 2, 3 and 4 in Part 2, we find that there are no reasons why the development application should be refused.

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The evidence 43The experts agree the purpose of the podium is to create a humanised scale and a more open feeling at the street and to relate the building to other nearby buildings. While accepting that the tower does not satisfy the setback requirement in cl 1.1 m, the area of dispute centres on how the purpose of the setback is best achieved and specifically the setback for the corner units to Berry Street. 44Mr Baker states that the issue in dispute is the lack of the setback from Berry Street of the corner units from Level 11 to Level 23. Although the corner unit on Level 5 is set back from Berry Street, the setback of one level cannot satisfy the presumed purpose of effectively setting back the tower from the podium at the corner. Mr Baker states that a setback from the corner in Berry Street is necessary to contrast the tower above the podium and to achieve the setback intent in the councils planning controls. As a means of overcoming this shortcoming, Mr Baker suggests that the floor plan for unit 5 be extended to the top of the building. 45Mr Mossemenear accepts that the 5 m setback should not be strictly applied although he has a similar view to Mr Baker. The provision of the minimal setback to Level 5 results in a building that is out of context with the desired future character of the area. 46The council experts propose the following condition: The south eastern corner of the building is to be a 1 bedroom unit (reflecting the 1 bedroom unit on level 5 with the southern balcony removed) from levels 6-23. There must not be a balcony on either the southern or eastern facades of the south eastern corner of the building. The applicant must provide details and plans setting out the above amendments to the certifying authority prior to the issue of a Construction Certificate (Reason; to create a stronger shadow and greater depth between the podium and the lower corner of Pacific Highway and Berry Street) 47As part of the joint conferencing, that included the town planning experts, Ms Morrish proposes a design amendment for the corner unit on level 6 or the full height of the building although her principal position is that no change is necessary to achieve a good outcome for the building in terms of the podium and presentation to the street. In her opinion, the existing design reinforces the junction and termination of the streets. The building provides a strong corner form with the podium scale relating directly to the treatment of the adjoining or nearby approvals in Berry Street and the Pacific Highway. The proposed development is consistent with the approval further towards Berry Street as the proposed building continues the alignment set by that building. 48Ms Morrish states that it is possible, but not necessary, to change the design of the corner unit to create a stronger "waist", if this is considered desirable by the Court, but it is not necessary to change the design for the entire corner for the full height of the building. 49Ms Laidlaw notes that the building opposite at 12-16 Berry Street was recommended for approval despite its lack of what would normally be regarded as a "podium". This building provides a minimum a 500 mm setback at the upper levels and given this context, the proposal with the face of the southern wall setback 2 m, but with the balcony extending to the street, is a reasonable and appropriate response to its context. Ms Laidlaw notes that there is no obvious podium on 154 Pacific Hwy and the recently approved development at 156 Pacific Highway provides a presentation that is more in the nature of a staggered setback. Recent approvals by the council in the area indicate a wide range of podium treatments, including the use of architectural expression and "waisted" buildings that provide for general variation to the 5 m setback control. Ms Laidlaw states that the purpose of the podium can be achieved by the deletion of the Level 5 and 6 balconies to provide a more pronounced "waist". 50If the Court is not satisfied that the proposed corner treatment is acceptable, the applicants experts propose the following condition: The 2 bedroom unit at the south east corner on level 6 is to be amended to repeat the floor plan of the 1 bedroom unit in the south east corner on level 5.There is to be no balcony provided to either the eastern or southern facades to the amended unit on level 6. (Reason; to create a stronger shadow and greater depth between the podium and the lower corner of Pacific Highway and Berry Street)

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South facing apartments 54Clause 6.2 j iii of the DCP provides: iii Minimise south facing units and use lightwells to provide natural light where not available 55The RFDC (at p 85) as a Rule of Thumb provides: Limit the number of single aspect apartments with a southerly aspect (SW --SE) to a maximum of 10% of the total units proposed. Developments which seek to vary from the minimum standards must demonstrate how site constraints and orientation prohibit the achievement of these standards and how energy efficiency is addressed. 56The applicants experts calculate the number of south facing apartments at 16 % (13 of 84 apartments) and while in excess of the 10 % specified in the RFDC, given the orientation of the site and that greater weight that should be given to the requirements in the DCP, they maintain that the proposed development minimises the number of south facing units and as such, the number of south facing apartments is not a reason to refuse the application. 57The council's experts calculate the number of south facing apartments at 19 % (16 of 84 apartments) as they include three studio unit on levels 5, 7 and 9 that were not included by the applicants experts as they considered the apartments to be dual aspect apartments as these apartments have access to the lightwell. 58On this matter, we agree with the applicants experts. Preference should be given to the DCP requirements over the RFDC as the DCP relates specifically to the site whereas the RFDC is a more generic document. We are satisfied that the design "minimise(s) south facing units and use(s) lightwells to provide natural light where not available". In any event, we would accept that given the buildings primary orientation is to the south, there is sufficient justification to support a variation to the 10 % requirement in the RFDC, at either 16 % or 19 %. 59Pursuant to cl 30 of SEPP 65 and after considering Principle 7 in Part 2, we find that there are no reasons why the development application should be refused.

[10]

The light well 60The proposed building has a lightwell with the principal area of dimensions of 9 m x 10 m and an area around 110 sq m that extends from Levels 5 to 11 on the northern side of the building. Level 12 and above are partially constructed over the lightwell. 61Clause 6.4 a.a. of the DCP provides requirements for lightwells and ventilation and relevantly states that living areas do not have lightwells as only source of outlook (cl 6.4 a.a.i), lightwells have a minimum plan area of 18 sq m for a building between 18 m and 45 m in height (cl 6.4 a.a.ii) and buildings over 30 m in height should have light wells directly connected at ground level to streets and lanes to allow air movement in the lightwell (cl 6.4 a.a.iii). 62The council's experts principal concern centred on the potential impact of the future development of the adjoining site to the north. Based on the likely planning controls, the development of the adjoining site would be equal to Level 16 on the subject proposal and the lightwell, which is partially built over Level 12 and above, will become dark and poorly ventilated. It would receive no direct sunlight in winter and consequently would result in poor amenity for any room opening onto the lightwell. 63The applicants experts maintain that the proposal does not provide a lightwell but rather a large courtyard area on Level 5 that provides a void to Level 11. The courtyard provides only a secondary light and ventilation source for generally one apartment per floor and on 3 floors for two apartments. Both apartment types that have access to the courtyard, are dual aspect apartment designs where the living areas and main bedrooms have outlook, light and air from their primary facades to either the Pacific Highway or Berry Street. Given that the use of lightwells is contemplated by the DCP, the lightwell area of around 110 sq m substantially exceeds the DCP requirement of 24 sq m and that the area is open to Doohat Lane, irrespective of any development on the adjoining property, limited sunlight to a small number of apartments that have other sources of daylight, would not be a reason to refuse the application. 64On this matter, and accepting that the lightwell does not provide an optimal solution to sunlight and ventilation for some apartments, we accept that it is acceptable for the reasons stated by the applicants experts. 65Pursuant to cl 30 of SEPP 65 and after considering Principle 7 in Part 2, we find that there are no reasons why the development application should be refused.