The Trustee For Good Time Holdings NSW Trust v The Council of the City of Sydney [2023] NSWLEC 1572 | Case summary

Land and Environment Court (NSW)|2023-09-21

The applicant's written request to contravene the height of buildings development standard

The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard
The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant's written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).
The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] ("Wehbe") and repeated in Initial Action [17]-[21]: 1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary; 3. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable; 4. the development standard has been abandoned by the council; 5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

Insufficient environmental planning grounds to justify the exceedance of the height of buildings development standard

The grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).
I am not satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant's written request defends the exceedance of the height of buildings development standard based on the following environmental planning grounds:

The current development consent for the site, D/2018/686 (Ex 8, the consent), has a maximum building height of 54.9m to the uppermost edge of the building fronting James Lane, and a height of 54.7m fronting Sussex Street. The proposal has a building envelope and footprint that is very similar to the consent. The building height is therefore established by the consent and maintained by the proposal. The consent should be given weight in considering the written request to contravene the height of buildings development standard.
Retention of the existing building is not feasible.
The consent has established the building height, bulk and scale of development on the site and the non-compliance with the height of buildings development standard will contribute to the character of the locality.
The non-compliance with the height of buildings development standard will not have any adverse visual impact to the public or neighbouring properties.
The non-compliance with the height of buildings development standard achieves a high level of design excellence and is compatible with the existing and desired future character of the locality.
The subject site is affected by flooding and the lower ground and upper ground floor have been located at reduced levels to comply with the 1% AEP plus 500mm freeboard. This increases the overall height of the proposal.
The social benefits of providing additional hotel accommodation within a highly sought-after location should be given weight.
The amenity impacts have been established by the building envelope of the consent and this is maintained by the proposal.
The proposal meets the aims and relevant objectives of the applicable environmental planning instruments.

I do not consider that the environmental planning grounds cited by the written request in relation to the exceedance of the height of buildings development standard are sufficient, for the following reasons:

I accept that the consent is a consideration as a relevant instrument under s 39(4) of the LEC Act (Abrams v The Council of the City of Sydney (No 2) [2018] NSWLEC 85 at [38] ("Abrams")). I accept Ms Urqueza's evidence, in regard to the assessment of the consent, that the retention of the façade and two bays of structure behind the façade was considered to be an optimal outcome in maintaining the contribution of the warehouse building to the established character of Sussex Street; and the bulk of the necessary structural solution to retain the façade and the generous floor to ceiling dimensions of the existing warehouse were sufficient to justify the exceedance of the height of buildings development standard in order to recover foregone gross floor area (Ex 5, par 31). This important circumstance distinguishes the consent in terms of its building envelope from the proposal and does not justify the contravention of the height of buildings development standard for the proposal. The terms of cl 4.6 of LEP 2012 require the consent authority, or the Court exercising the functions of the consent authority, to be satisfied of the matters under subcl (4) in relation to the proposal (Abrams at [46]-[47]). The consent does not establish a concept approval of a building envelope for future, different development applications.
I accept the agreement of the structural engineers that retention of the existing façade is feasible (Ex 6, p 21). Had the retention of the existing façade not been feasible, it would not justify an exceedance of the height of buildings development standard, because the demolished building presents no constraints.
The lack of amenity impacts caused by the portion of the building envelope over 50m above existing ground level does not, in of itself, justify the exceedance of the height of buildings development standard.
The planning experts agreed that the flood planning level requires the ground floor of the proposal to be raised 352mm above the lowest point of the Sussex Street footpath. I accept the Applicant's position that this justifies a proportional exceedance of the height of buildings development standard.
The proposal is availed of a bonus 1.5:1 FSR pursuant to cl 6.4(1)(g) of LEP 2012 as the proposed use is a hotel. This bonus embodies the Council's policy to encourage certain uses in certain areas of the city. Adding more gross floor area over and above the bonus does not justify an exceedance of a development standard.

That the written request to contravene the height of buildings development standard does not establish sufficient environmental planning grounds to justify the contravention is determinative, as satisfaction of the terms of cl 4.6(4)(a)(i) of LEP 2012 is a jurisdictional pre-condition to the grant of consent.

Section 5.1.3.3 of the Sydney Development Control Plan 2012 applies to the potion of the former warehouse building on the site

The Applicant submitted that section 5.1.3 does not apply to the proposal because the site is not identified as a heritage item. The introductory sentence, "This section applies to all heritage items" is, according to the Applicant's submission, ambiguous as to whether the section is limited to warehouses identified as heritage items.
The Respondent submitted that section 5.1.3 applies to all warehouse buildings over 50 years old, whether or not they are identified as heritage items. This is brought out in the objectives, where (a) relates to heritage items, and (b) relates to former warehouses; as (b) would be redundant if the section only applied to heritage items.
I accept Mr Phillips' evidence that the existing building on the site, being part of a Federation era warehouse built for Anthony Hordern & Sons Department Stores and designed by the architectural firm Morrow & De Putron, does not meet the threshold for heritage listing under the NSW Heritage Office criteria (Ex J, at 7.1).
I accept Mr Phillips' evidence that retention of the significant parts of the existing building including the front façade could be considered to be the best design option for the site, if feasible to do so (Ex 4, par 35). In Mr Phillips' opinion, the façade has "some degree of heritage significance" and "some representative value as a Federation warehouse". In his view, the building is compromised by being only part of the whole composition of the former warehouse building which originally consisted of 13 bays. He noted that the Council has recently sanctioned the demolition of part of the former warehouse building when the consent for the adjoining Vibe Hotel was granted.
I accept Mr Phillips' evidence that the contribution of the existing building to the setting of the heritage item on the opposite side of Sussex Street is only marginal, as the buildings have no direct visual relationship and are not related in any way.
I accept the Respondent's submission that section 5.1.3 of DCP 2012 applies to former warehouse buildings older than 50 years. Section 3.10 of DCP 2012 identifies "significant architectural building types", under which "warehouses… older than 50 years" are identified as a significant architectural building type. Section 5.1.3.3 Warehouse buildings includes provisions in addition to the general warehouse provisions in section 3.10.1. As the existing building is identified as (part of) a former warehouse building older than 50 years, section 3.10.1 applies to the proposal. As section 3.10.1 applies, so does 5.1.3.3, because those provisions are identified as being in addition to the provisions under section 3.10.1. The provisions under section 5.1.3.3 of DCP 2012 are not limited to former warehouse buildings identified as heritage items, but apply to former warehouse buildings older than 50 years, which are identified as a "significant architectural building type" by DCP 2012.
The proposal to entirely demolish the existing part of the former warehouse building on the site, the façade of which is identified as being of some heritage significance by the Applicant's heritage expert notwithstanding that it does not meet the threshold for local heritage listing, is contrary to the provisions for warehouse buildings under sections 3.10.1 and 5.1.3.3 of DCP 2012. The retention of the façade and structural bay/s is feasible according to the agreed evidence of the structural engineering experts and as such, the best design option for the site, according to the Applicant's heritage expert.
The proposal to demolish the existing building is contrary to objective (a) of section 3.10.1 of DCP 2012, to "conserve warehouse…buildings older than 50 years and ensure that alterations, additions and adaptive re-use maintain the legibility of the historic use"; and (b) of section 5.1.3.3 of DCP 2012, "to conserve and enhance former warehouses and provide for their appropriate use in a manner that retains significant…historic features".

Conclusion

The environmental planning grounds cited by the Applicant in the written request to contravene the height of buildings development standard are insufficient, pursuant to cl 4.6(4)(a)(i) of LEP 2012, and this is determinative of the appeal as cl 4.6 is a jurisdictional pre-requisite to the grant of development consent as the proposal exceeds the height of buildings development standard.
I find that section 5.1.3 of DCP 2012 does apply to the proposal because the site contains part of a former warehouse that is older than 50 years, which is a significant architectural building type identified by DCP 2012. The part of the former warehouse building extant on the site, notably the Federation era façade, is of some heritage significance and retention of that façade is structurally feasible. The proposal is therefore contrary to the objectives for former warehouse buildings under sections 3.10.1 and 5.3.1.1 of DCP 2012.

Orders

The orders of the Court are: 1. The Applicant is granted leave to amend the application to rely on an amended proposal. 2. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 3. The appeal is dismissed. 4. Development Application No. D/2023/10 for the demolition of existing structures, excavation for three basement levels and construction of a 17-storey hotel development and ancillary uses, including food and drink premises, function centre and recreational areas, at 311-317 Sussex Street, Sydney, is refused. 5. The exhibits, other than Exhibits 7 and A, are returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2023

Contravention of height of buildings development standard

The proposal has a maximum height of 54.95m (Ex C, p 4). The height of buildings development standard for the site is 50m.
The applicant provided a written request seeking to justify the contravention of the height of buildings development standard (Ex C).
Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] ("Initial Action")). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action at [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows: (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained.
On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) Land and Environment Court Act 1979 (LEC Act), but should still consider the matters in cl 4.6(5) of LEP 2012 (Initial Action at [29]).

(2018) 236 LGERA 256

(2007) 156 LGERA 446

The Trustee For Good Time Holdings NSW Trust v The Council of the City of Sydney

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