Uniting Church in Australia Property Trust (NSW) v Parramatta City Council

Land and Environment Court (NSW)|2017-12-19

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 310/2017, for the demolition of existing buildings at 99-113 and 119A Macquarie Street, Parramatta, and a concept development application made under s 4.22 of EPA Act for a staged mixed use development comprising two building envelopes (the proposal) at 99-113, 119 and 119A Macquarie Street, Parramatta (the site) by Parramatta City Council (the Council).
Leave was granted by the Court on 3 August and on 7 November 2017 for the applicant to rely on amended proposals (exhibits A and C). Leave was granted during the hearing for the applicant to rely on new architectural documentation showing the building envelopes for the proposal in exhibit C, excluding the indicative floor layouts (exhibit H).

Issues

The Council's two principal contentions are:

The proposed building envelope for the Fellowship Place building will result in excessive overshadowing of the Civic Plaza within Parramatta Square; and
The proposed building envelope encroaches on the heritage curtilage of the Leigh Memorial Uniting Church which will adversely impact on the church's heritage significance.

The Council's issue that the proposed building envelope does not exhibit design excellence was pressed. The Council's contention that the building envelope for the Fellowship Place building includes floor space and height bonuses that are only available through the design excellence clause in Parramatta Local Environmental Plan 2011 (LEP 2011) was addressed by condition 4 (exhibits 11 and O), requiring a competitive design process in accordance with clause 7.10 of the Parramatta Local Environmental Plan 2011 (LEP 2011) for the future stages of development.
The Council's contention that the proposal fails to demonstrate that it provides adequate provisions for pedestrian and vehicle movement to and from the site and that it will be compatible with the operation of the light rail project was not pressed following the parties' agreement that vehicular access to the site can be provided.
The Council's contentions regarding the proposal's failure to demonstrate that it can achieve effective stormwater and floodwater management to safeguard the safety of persons and property on the site and adjoining properties was not pressed following the applicant's agreement to remove the indicative use labels on basement levels other than parking and the agreed condition 6 (exhibits 11 and O) requiring a flood assessment be prepared for the future stages of development-.

The site and its context

The site consists of three allotments (Lot 9 in DP 702736, Lot A in DP 628809 and Lot 1 in DP 626765) known as 99-113 Macquarie Street, 119 Macquarie Street and 119A Macquarie Street, Parramatta. The central allotment, known as 119 Macquarie Street, contains the local heritage item; the Leigh Memorial Uniting Church built c1834. The site has a northern frontage to Macquarie Street of 70m, a maximum depth of 38m and a total site area of 2,613sqm.
Leigh Place (also referred to as "Civic Link") is a former road to the east of the site, running north/south between Macquarie Street and Parramatta Square.
3 Parramatta Square is to the east of the site, on the opposite side of Civic Link and fronting Macquarie Street (development consent granted 17 August 2017).
1 Parramatta Square is Western Sydney University and is to the east of 3 Parramatta Square, fronting Macquarie Street.
5 Parramatta Square is immediately to the south of the site (development consent granted 7 February 2018).
Parramatta Square is a proposed urban pedestrian street running east/west, positioned on the axis created by St John's Cathedral, which is the focus of Parramatta Square and terminates the vista to the west. The existing Town Hall and 5 Parramatta Place form the northern edge of the western end of Parramatta Square.
2, 4, 6 and 8 Parramatta Square are on the southern side of Parramatta Square. There is a pedestrian thoroughfare to and from Parramatta Railway Station across 4 Parramatta Square that approximately aligns with Civic Link. 4 and 6 Parramatta Square have development approval dated 18 November 2016 (exhibit D, tab 7) however the consent excludes outdoor dining areas (condition 203).

Background and the proposal

The proposal includes the following:

Retention of the Leigh Memorial Uniting Church and demolition of the other existing structures on the site;
Building envelope for a 13 storey mixed use building with a height of up to 54m over 5 levels of basement at 99-113 Macquarie Street (Epworth House);
Building envelope for a 19 storey mixed use building with a height of up to 62.1m (subject to condition 4, exhibit 11 and O) over one level of basement at 119A Macquarie Street (Fellowship House);
Reinstatement of the Leigh Memorial Uniting Church spire, creation of a new side entrance to the church and adaptation of the existing place of public worship with ancillary community facilities;
Glazed roof element wrapping around the eastern, western and southern sides of the Leigh Memorial Uniting Church and connecting to each of the tower envelopes.

The building envelope for the eastern building is variously referred to in exhibit H and other documents as Fellowship Place and Fellowship House. I have referred to this eastern building envelope as Fellowship House for consistency.

Planning framework

The development application is made pursuant to the provisions of s 4.22 of the EPA Act, which is in the following terms: 4.22 Concept development applications (cf previous s 83B) (1) For the purposes of this Act, a concept development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for the site or for separate parts of the site are to be the subject of a subsequent development application or applications. (2) In the case of a staged development, the application may set out detailed proposals for the first stage of development. (3) A development application is not to be treated as a concept development application unless the applicant requests it to be treated as a concept development application. (4) If consent is granted on the determination of a concept development application, the consent does not authorise the carrying out of development on any part of the site concerned unless: (a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or (b) the concept development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent. The terms of a consent granted on the determination of a concept development application are to reflect the operation of this subsection. (5) The consent authority, when considering under section 4.15 the likely impact of the development the subject of a concept development application, need only consider the likely impact of the concept proposals (and any first stage of development included in the application) and does not need to consider the likely impact of the carrying out of development that may be the subject of subsequent development applications. Note. The proposals for detailed development of the site will require further consideration under section 4.15 when a subsequent development application is lodged (subject to subsection (2)).
The site is zoned B4 Mixed Use under Parramatta Local Environment Plan 2011 (LEP 2011) and commercial premises, shop top housing and any other development not prohibited is permissible with consent. The zone objectives, to which regard must be had, are: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To encourage development that contributes to an active, vibrant and sustainable neighbourhood. • To create opportunities to improve the public domain and pedestrian links. • To support the higher order Zone B3 Commercial Core while providing for the daily commercial needs of the locality. • To protect and enhance the unique qualities and character of special areas within the Parramatta City Centre
The height of buildings development standard for the site is 54m (Height of Buildings Map Sheet HOB_010 LEP 2011). Extract from Height of Buildings Map HOB_010 LEP 2011 (Am 12) Site is Y2 = 54m Area 2 = Refer to Clause 7.4
The objectives for the height of buildings at cl 4.3 of LEP 2011 are: 1. (a) to nominate heights that will provide a transition in built form and land use intensity within the area covered by this Plan, 2. (b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development, 3. (c) to require the height of future buildings to have regard to heritage sites and their settings, 4. (d) to ensure the preservation of historic views, 5. (e) to reinforce and respect the existing character and scale of low density residential areas, 6. (f) to maintain satisfactory sky exposure and daylight to existing buildings within commercial centres, to the sides and rear of tower forms and to key areas of the public domain, including parks, streets and lanes.
The maximum floor space ratio for the site is 8:1 (Floor Space Ratio Map Sheet FSR_010 and cl 7.2 of LEP 2011). The FSR map shows the entire block including the site has a FSR of 8:1. The building envelopes for Epworth House and Fellowship House accommodate the gross floor area measured as a ratio to the total site area, including the parcel of land containing the Leigh Memorial Uniting Church.
The site includes two local heritage items listed in Schedule 5 of LEP 2011, the convict drain (I647) and the Leigh Memorial Uniting Church (I719) and is in the vicinity of a number of heritage items, including the Parramatta Town Hall. The consent authority must consider the effect of the proposal on the heritage significance of a heritage item or heritage conservation area, at cl 5.10(4) of LEP 2011.
Part 7 of LEP 2011 includes additional local provisions for the Parramatta City Centre, which includes the site, at cl 7.1(1). A provision of this part prevails over another inconsistent provision to the extent of the inconsistency, at cl 7.1(2).
Clause 7.4 of LEP 2011 is a general provision and so it is applicable to the proposal, although the site is not within "Area 2" on the Height of Buildings map which specifically refers to cl 7.4. The terms of the clause are as follows: 7.4 Sun access (1) The objective of this clause is to protect public open space in Parramatta Square, the Lancer Barracks site and Jubilee Park from overshadowing. (2) This clause applies if the consent authority considers that development that is the subject of a development application is likely to cause excessive overshadowing of the public open space referred to in subclause (1). (3) The consent authority, in determining that development application, must take into consideration the relevant sun access plane controls specified for that land in section 4.3.3 of the Parramatta Development Control Plan.
The site is identified as a "key site" (Key Sites Map Special Provisions Map Sheet CL1_010 LEP 2011), which is relevant for cl 7.10(5)(c) of LEP 2011, as follows: (5) Development consent must not be granted to the following development to which this clause applies unless a competitive design process has been held in relation to the proposed development: (c) development having a capital value of more than $10,000,000 on a "Key site" identified on the Key Sites Map
The parties agreed that the proposal is not "development" for the purpose of cl 7.10(5)(c) of LEP 2011. Key Sites Map Special Provisions Map Sun Access Protection Map - Sheet CL1_010 of LEP 2011 (Am 23) Site is part of the area identified as "Key Site" Blue lined area "Lancer Barracks" identified as Specified Sites, no additional overshadowing
Clause 7.11 of LEP 2011 applies to land to the east of the site, marked "Area 5" on the Special Provisions Area Map of LEP 2011, at cl 7.11(1), as follows: 7.11 Development on land at 153 Macquarie Street and part of 1A Civic Place, Parramatta (1) This clause applies to land marked "Area 5" on the Special Provisions Area Map. (2) The consent authority may grant consent to development involving the construction of a new building or external alterations to an existing building on land to which this clause applies if: (a) the design of the building or alteration is the result of a competitive design process as required by clause 7.10 (5), and (b) the consent authority is of the opinion that the building or alteration exhibits design excellence with regard to the design criteria specified in clause 7.10 (4), and (c) the development does not result in a building with a gross floor area that exceeds 46,200 square metres, and (d) at least 90% of the floor space of the building will be used for business premises, office premises or retail premises, and (e) no part of the building will be used for residential purposes, and (f) the development does not result in any additional overshadowing on the land shown with blue hatching on the Sun Access Protection Map between 12 noon and 2pm on 21 June in each year.
The blue lined Lancer Barracks area was added to the map by the amending LEP 2011 No. 23 dated 14 July 2017. The applicant submits that 1 Parramatta Square and 3 Parramatta Square both overshadow Lancer Barracks during the lunch period on the winter solstice and I note that 3 Parramatta Square (determined 9.8.17, exhibit D, tab 5) must have been lodged prior to the change to the map. The extent of overshadowing of Lancer Barracks by 3 Parramatta Square is, however, relevant to my consideration of cl 7.4 of LEP 2011 (cl 7.4 was inserted into LEP 2011 by the amending LEP 2011 No. 10 which commenced on 18.12.15).
Parramatta Development Control Plan 2011 (DCP 2011) applies to all land with the Parramatta Local Government Area at section 1.3.
Section 2.4.8 of DCP 2011 Public domain, includes the following relevant objectives and design principles: 2.4.8 Public Domain The public domain comprises the publically accessible streets, parks and squares, the structures that relate to those spaces and the infrastructure that supports and serves them. Parramatta's public domain includes the railway corridors, streetscapes, public car parks, parks and reserves and natural waterways. The public domain incorporates elements such as fences, bridges, trees, footpaths, street furniture and artworks. Development of private property should have regard and make a positive contribution to the interface with the public domain. O.3 To ensure that development adjacent to public domain elements such as waterways, streets, parks, bushland reserves and other public open spaces, complements the landscape character, public use and enjoyment of that land. P.1 Development is to be designed to address elements of the public domain, including the building interface between private and public domains, circulation patterns and accessways, gateways, nodes, edges, landscape features, heritage items, ground floor activity and built form definition to the street. P.2 Public access to the public domain is to be maximised. P.6 Development is to be designed in accordance with Council's current public domain guidelines. P.7 New development is encouraged to provide public domain improvements. Applicants should consult with Council to determine the appropriate public domain treatment suitable for the site and surrounds. This may include street tree planting, street paving, street furniture and public artwork.
Section 3.1 of DCP 2011 Preliminary building envelope, includes the following relevant description: 3.1 Preliminary Building Envelope An allotment of land may be required to have a minimum site area or minimum frontage for a particular development either under the Parramatta LEP 2011 or this DCP. Development proposals must include a site analysis as outlined in Part 2 of this DCP to identify key opportunities and constraints for the development of the site. A preliminary building envelope is then identified, this being the three dimensional space that limits the extent of a building on the allotment. The building envelope may be defined by height and front, rear and side boundary setbacks. The controls that define the preliminary building envelope for different types of development are set out in the Preliminary Building Envelope Tables in this section of the DCP. Once the preliminary building envelope has been determined, refinement of the envelope is necessary to 'mould' the development to best meet the planning objectives and design principles of this DCP. The total area defined by the building envelope is generally greater than the resultant building form. The building envelope includes articulation zones for blade walls, shading devices and the like. These features may not project outside the building envelope. The preliminary building envelope is further refined by applying the relevant building, environmental, social and transport principles for development. These controls will modify the preliminary building envelope to give a form and shape to a new building. The objectives state the desired outcome, while the design principles and controls show ways in which that outcome may be achieved. It is expected that the design principles will inform the 'best practice' design for a development. 3.1.1 Height The building height provisions in the Parramatta LEP 2011 indicate the maximum building height expressed in metres. This DCP specifies height limits measured both in storeys and metres. The number of storeys, as well as the height limit in metres, is not to be exceeded. This is included as a means of encouraging interesting and varied roof forms, as opposed to encouraging developments which maximise the number of storeys within the height limit and utilises a flat roof. This DCP may specify instances where, for reasons of consistency of character, streetscape or heritage considerations, pitched roof forms will be encouraged. Additionally, certain places have special characteristics, such as heritage significance, view corridors, amenity considerations and the like, which require particular design outcomes as outlined in Part 4 of this DCP. In this context, there are circumstances where site conditions require consideration of a lower height than that expressed in the LEP and are considered to be 'exceptions'. These exceptions are noted in the tables in this section and also in Part 4 - Special Precincts.
Table 3.1.3.11 of DCP 2011 summarises the development standards and controls for the zone, as follows:
Section 3.5 of DCP 2011 Heritage, includes the following relevant objectives and design principles: O.1 Appropriate management of heritage in the Parramatta LGA. O.2 Retention and reinforcement of the attributes that contribute to the heritage significance of items, areas and their settings. O.3 Maintenance and improvement to residential amenity and open space areas. O.4 Development that is compatible with the significance and character of the area. Scale The scale and bulk of any new work is the most important issue to get right. In the case of infill work in a conservation area, the scale of the new building needs to be similar to those surrounding it. In the case of renovations and extensions, the new work should not overwhelm the original building, and would almost certainly need to be no larger in size than the original building. Architectural Form The basic architectural form of any new work needs to respect that which exists. Issues to consider include the pitch and form of the roof, and the size, proportion and location of windows and doors. Curtilage [sic] The majority of built heritage items in Parramatta are listed with their curtilage contained within the lot boundary containing the item. In some cases there is a reduced curtilage where the significance of the item and its interpretation is not dependant on having a large curtilage extending to the lot boundary. In such cases it is necessary to identify a curtilage that enables the heritage significance of the item to be retained. It is also possible that there will be an expanded curtilage for some items where the curtilage is greater than the property boundary. An expanded curtilage may be required to protect the landscape setting or visual catchment of an item. For example, the significance of some p New Buildings C.11 New buildings will need to respect and acknowledge the existing historic townscape of Parramatta so that new and old can benefit from each other. C.12 Applicants need to concentrate on getting the height, siting, shape and materials right so that new buildings will blend with old areas without imitation of period details, including consideration of: - the height of the new building compared to those nearby - the new building should be no higher than the majority of the buildings in its vicinity - the setback of the new building from the street and from its side and rear boundaries and as compared to its neighbours on either side. C.19 A new building near an important heritage item, such as a church or hall (which might also be a local landmark) needs to be carefully designed. It must not try to copy the heritage item or compete with it for attention. It is best if the new building fits in with the character of the surrounding neighbourhood, leaving the heritage item to stand alone. 3.5.2 Archaeology O.1 To provide appropriate conservation and management of the archaeological resources to the Parramatta LGA. P.1 In the case of any development where excavation is proposed, the Applicant must refer in their Statement of Environmental Effects (SEE) to the Parramatta Historical Archaeological Landscape Management Study (PHALMS). P.2 The SEE must refer to the management recommendations set out in the PHALMS in relation to the subject site, and must show how the applicant intends to comply with those recommendations. If PHALMS recommends further assessment and/or documentation, then such information shall be included in the SEE. P.3 If necessary, the applicant shall, prior to any excavation work commencing, make an application to the NSW Heritage Office for an application permit under the terms of the Heritage Act 1977. The applicant shall allow sufficient time and resources for the determination of the application and for completion of the archaeological programme required. P.4 At all times when excavation is being carried out, the applicant (or any persons acting for the applicant) should aware of any excavation permit requirements including the need for monitoring, stopping work and reporting any relics found to the NSW Heritage Office.
Part 4 of DCP 2011 contains specific design requirements for certain precincts and prevails over other inconsistent objectives and controls in DCP 2011. Section 4.3.3 for Parramatta City Centre includes the following relevant objectives: 4.3.3 Parramatta City Centre The provisions of this section of the DCP apply to development in the Parramatta City Centre, as shown in Figure 4.3.3.1 and will prevail where there is any inconsistency with other sections of this DCP. The broad objectives for the Parramatta City Centre are: To support the primacy of the centre as an employment node with a strong commercial core occupied by high order quality commercial buildings. To support the commercial core with surrounding mixed use development that reinforces and complements the centre's core employment role. To ensure high quality design of buildings and public areas. To activate the Parramatta River edge and the relationship of the river to the city. To provide for the conservation and interpretation of Parramatta's heritage. To improve the natural environment. 4.3.3.1 Building Form O.1 To establish appropriate scale, dimensions, form and separation of buildings; O.2 Achieve active street frontages with good physical and visual connections between buildings and the street; O.3 Define the public street so that it provides spaces that are legible, safe, comfortable, functional and attractive; O.4 Ensure building depth, bulk and separation allows for view sharing and protects amenity, daylight penetration and privacy between adjoining developments: O.5 Achieve an articulation and finish of building exteriors that contributes to a high quality and sustainable urban environment; O.6 Protect and provide visual connections to the Parramatta River and parkland.
Parramatta Square is a city centre special area in DCP 2011. The desired future character statement for Parramatta Square is as follows: Parramatta Square refers to the land generally bounded by Macquarie Street, Smith Street, Darcy Street and Church Street Mall in the Parramatta City Centre. Parramatta Square, formerly Civic Place, is at the heart of the Parramatta City Centre located adjacent to the Parramatta Transport Interchange. Its redevelopment will strengthen Parramatta as Sydney's Central City, and as a centre for business, tourism, entertainment, culture and heritage. The development of Parramatta Square is vital to showcasing design excellence and environmental sustainability excellence for the city and region as well as achieving the targets for future employment growth by providing direct opportunities and generating flow on effects. The eastern part of Parramatta Square will contain employment in premium office space. The remainder of Parramatta Square will accommodate [sic] a mix of commercial, residential, retail, cultural and entertainment uses, that are compatible with the city centre location and contribute to enlivening the city centre at all times. Building on the renewed transport interchange, Parramatta Square will provide an easily accessible civic focus for the city. The built form of Parramatta Square will be defined by a row of the tallest buildings in Parramatta immediately north of the railway station, and a large central public open space. The space will be enclosed by a series of buildings fronting Macquarie and Smith Streets. All of the buildings will demonstrate design excellence, commensurate with their important civic location. Parramatta Square will be a public gathering place. The public open space at the centre of Parramatta Square will form the pre-eminent ceremonial centre of Parramatta, the site for both significant formal civic events and recurrent cultural and community celebrations and festivals. Local residents will grow accustomed to attending a variety of gatherings in Parramatta Square. The design of the public open space will reflect the nature of its use and be of high quality. Given this character, vehicle movements will be restricted and pedestrian and cycle movement will dominate.
The relevant objectives and controls for Parramatta Square in DCP 2011 are: Site Objectives O.2 Retain a civic focus on the site. O.6 Reinforce and improve existing and proposed north-south pedestrian links. O.9 Activate the ground floor public domain and civic areas to create a vibrant precinct, which is activated day and night. O.11 Ensure residential uses provide a high level of amenity. O.1 Provide a range of robust and flexible public spaces that will cater for a variety of public celebrations, events and functions. C.1 Provide a total of 6,000sqm of public open space across the site (excluding Church Street Mall from calculation [sic]). At least 3,000sqm with a minimum width of 40m is to form one contiguous area in the centre of the site, as shown on Figures 4.3.3.7.3 and 4.3.3.7.4. Encroachments up to 6.5 metres into the 40 metre minimum width zone may be considered where justified by an agreed design excellence rationale. C.3 Overshadowing is to be minimised within the area outlined in red in Figure 4.3.3.7.3. Individual buildings shall be designed so that no single point of the area outlined in red is in shadow for a period greater than 45 minutes between 12pm- 2pm mid-winter. C.5 In addition to streets and lanes, to enhance public circulation a number of pedestrian through site links as shown on Figures 4.3.3.7.3 and 4.3.3.7.4 are to be created which respond to the existing and proposed system of lanes and mid-block pedestrian connections. The through site links are to comply with Section 6.3 City Centre Lanes of the Parramatta Public Domain Guidelines and to have: A minimum width of 6m and clear sightlines Minimum double storey height for 80% of the arcade Natural light where possible Building Form The development provisions on building form in this section of the DCP are intended to encourage high quality design for new buildings, balancing the character of Parramatta with innovation and creativity. The resulting built form and character of new development should contribute to an attractive public domain in central Parramatta and produce a desirable setting for its intended uses. O.1 Establish high quality architectural and urban design for public spaces and buildings. O.4 Design buildings and open space to minimise wind generation and effects through building form, articulation, screening, galleries and the like. C.1 The pattern of buildings on the site is to create a central public open space generally at existing ground level with a direct connection to the adjacent transport interchange as shown in Figures 4.3.3.7.3 and 4.3.3.7.4. C.2 New buildings are to have street frontages predominantly built to the street and public domain alignment. C.4 Development on land fronting Macquarie Street must recognise the heights of the heritage buildings and reflect the predominant datums (5-6 storey podiums and 2-3 storey heritage buildings) within this part of the street, through a recessed podium, colonnade, strong shadow lines or similar. C.5 Commercial towers on land fronting Macquarie Street may be built to the street frontage to limit overshadowing to the public space to the south. C.6 Residential towers on land fronting Macquarie Street require a podium and setback to the tower for amenity reasons. C.7 Overshadowing is to be minimised within the area outlined in red in Figure 4.3.3.7.3. Individual buildings shall be designed so that no single point of the area outlined in red is in shadow for a period greater than 45 minutes between 12pm-2pm mid-winter. Figure 4.3.3.7.3 Public Space Set Out The "protected area" is shown outlined in red, on the southern half of Parramatta Square, west of the eastern side of Civic Link. Figure 4.3.3.7.4 Public Space Principles Legend 2. Leigh Place: Main northern entrance to Parramatta Square from the River Link and Macquarie Street Figure 4.3.3.7.5 Pedestrian and Vehicle Access Principles Heritage The site includes a number of heritage items identified in the LEP. The LEP also sets out the controls for both works to heritage items and development in the vicinity of heritage items. O.1 Conserve the heritage significance of the site by retaining key heritage buildings and settings. O.2 Protect and enhance the views to and from heritage buildings, such as St John's Church, the Town Hall and Leigh Memorial Church in the design of spaces and buildings. O.4 Interpret the location of the original marketplace, the convict drain and the site's archaeology. O.7 Ensure future development of the site enhances the heritage qualities of the site.

Public submissions

The Reverend Keith Hamilton, Senior Minister and CEO of the Parramatta Mission, gave evidence at the commencement of the hearing on-site in support of the proposal (exhibit F). He described the charitable work carried out by the Parramatta Mission, a Parish Mission of the Uniting Church in Australia and a not-for-profit organisation, including hospitality, social welfare, accommodation and mental health services for people living with a mental illness across Greater Western Sydney, Central Coast, Hunter Valley, New England and Mid-North Coast. The Parramatta Mission has operated on the site since 1821.
The Parramatta Mission views the site as being one which should be a place of meeting for all peoples and provides supported services for indigenous and non-indigenous people and is both a place of Christian worship as well as a worship space for people of all religious backgrounds, as part of the Parramatta Mission's work of social inclusion and tolerance. The location of the site within the centre of Parramatta enables the provision of services in a central location that is well serviced by public transport. The Parramatta Mission wishes to redevelop the site under the project name "Inspire the Common Good", which reflects the reconstruction of the Leigh Memorial Uniting Church Spire as well as the Mission's goal to be energetic and committed to the welfare and inclusion of all, especially those who are most in need in the city. The project will increase the capacity of the Parramatta Mission to assist more people.

Whether weight should be given to the social benefit of the proposal

The applicant submits that the social benefit arising from this project should be taken into consideration in assessing any amenity impacts caused by the proposal (The Benevolent Society v Waverley Council [2010] NSWLEC 1082 [222]).
The application is for a concept building envelope and any development consent granted runs with the land and not the proponent. The site, or part of the site, could be sold with development consent for a concept proposal to a new owner who develops the land for the same broadly consistent purpose but without the social agenda; or the site could be developed and the development sold, resulting in the proponent being no different to any other developer. If either of these scenarios occurred, the additional built form volume that may have been permitted on the basis of the social benefit arising from the project would be retained in perpetuity, but the social benefit would be lost.
The future city is a three dimensional design made up of built form and urban space. Ideally, the development standards applicable to a site reflect the masterplan for the desired future form of the city, where trade-offs resulting from benefits and impacts have been considered. The design of the city is, to some extent, undermined by arbitrary decisions to significantly exceed individual building envelopes in exchange for a perceived social benefit that may only be short-term.
A bonus in the form of additional volume for a building envelope for certain development held to be in the public interest is fundamentally a matter for government policy. An example of such a policy is the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) where a floor space bonus is available to a proponent as an incentive for providing a component of infill affordable housing, but is only available where a number of other constraints and requirements, consistent with the policy objectives, are met by the proposal. Importantly, a policy such as SEPP ARH for bonus floor space can be applied consistently and transparently across applications and the public benefit in the form of affordable housing is certain, because it is imposed on the approved development by condition.
It is not, in my view, appropriate for me to usurp the role of policy making and make an ad-hoc assessment of what it is or is not in the public interest in terms of public benefit arising from the future use of a concept proposal. I do not accept that this proponent or their particular brief for the future use of buildings on this site are relevant considerations falling within matters arising from the broad public interest under s 4.15(1)(e) of the EPA Act.

Expert evidence

The Council relied on the expert evidence of Mr Jeff Mead (planning) and Mr Hector Abrahams (heritage) and the applicant relied on the expert evidence of Ms Clare Swan (planning), Mr Graham Brooks (heritage).
The urban design experts, Ms Karla Castellanos for the Council and Mr Christopher Procter for the applicant, prepared joint reports (exhibits 9 and 16) and were not required to give evidence. The flooding and stormwater experts, Mr Paul Clark for the Council and Mr Andrew Norris (flooding) and Mr Tim Fitzhardinge (stormwater) for the applicant, prepared joint reports (exhibits 7 and 8) and were not required to give evidence. The traffic experts, Mr Gordon Trotter for the Council and Mr Ken Hollyoak for the applicant, prepared a joint report (exhibit 10) and were not required to give evidence.

Whether the design excellence clause 7.10 of LEP 2011 applies to a concept proposal

The Council contends that the Fellowship House proposed building envelope does not exhibit design excellence.
The design excellence clause in LEP 2011 at cl 7.10 is in the following terms: 7.10 Design excellence (1) The objective of this clause is to deliver the highest standard of architectural, urban and landscape design. (2) This clause applies to development involving the erection of a new building or external alterations to an existing building on land to which this Part applies. (3) Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence. (4) In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters: (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, (c) whether the proposed development detrimentally impacts on view corridors, (d) how the proposed development addresses the following matters: (i) the suitability of the land for development, (ii) the existing and proposed uses and use mix, (iii) any heritage and archaeological issues and streetscape constraints or opportunities, (iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) the bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network, (x) the impact on, and any proposed improvements to, the public domain, (xi) the impact on any special character area, (xii) achieving appropriate interfaces at ground level between the building and the public domain, (xiii) excellence and integration of landscape design. (5) Development consent must not be granted to the following development to which this clause applies unless a competitive design process has been held in relation to the proposed development: (a) development in respect of a building that has, or will have, a height above ground level (existing) greater than 55 metres, (b) development on a site greater than 1,000 square metres and up to 1,800 square metres seeking to achieve the maximum floor space ratio identified on the Floor Space Ratio Map, where amalgamation with adjoining sites is not physically possible, (c) development having a capital value of more than $10,000,000 on a "Key site" identified on the Key Sites Map, (d) development having a capital value of more than $100,000,000 on any other site, (e) development for which the applicant has chosen such a process. (6) A competitive design process is not required under subclause (5) if the consent authority is satisfied that such a process would be unreasonable or unnecessary in the circumstances and that the development: (a) involves only alterations or additions to an existing building, and (b) does not significantly increase the height or gross floor area of the building, and (c) does not have significant adverse impacts on adjoining buildings and the public domain, and (d) does not significantly alter any aspect of the building when viewed from public places. (7) If, before the commencement of this clause, the Secretary issued a certificate under clause 22B (5) of Parramatta City Centre Local Environmental Plan 2007 for any development to which subclause (5) of this clause applies, then subclause (5) of this clause does not apply to that development. (8) If the design of a new building, or an external alteration to an existing building, is the winner of a competitive design process and the consent authority is satisfied that the building or alteration exhibits design excellence, it may grant development consent to the erection of the new building, or the alteration to the existing building, with: (a) in any case - a building height that exceeds the maximum height shown for the land on the Height of Buildings Map or an amount of floor space that exceeds the maximum floor space ratio shown for the land on the Floor Space Ratio Map (or both) by up to 15%, or (b) if the proposal is for a building containing entirely non-residential floor space in Zone B4 Mixed Use - a building height that exceeds the maximum height shown for the land on the Height of Buildings Map or an amount of floor space that exceeds the maximum floor space ratio shown for the land on the Floor Space Ratio Map (or both) by up to 25%. (9) In this clause: building or alteration exhibits design excellence means a building where the design of the building (or the design of an external alteration to the building) is the winner of a competitive design process and the consent authority is satisfied that the building or alteration exhibits design excellence. competitive design process means an architectural design competition carried out in accordance with procedures approved by the Secretary of the Department of Planning and Environment.
The applicant submits that cl 7.10 does not apply to the proposal, because the proposal is not development involving the "erection of a building" pursuant to s 1.5(1)(c) of the EPA Act, but is instead a concept proposal.
I accept and prefer the Council's submission that the design excellence clause does apply to a concept proposal for the following reasons:

The objective of the clause is to deliver the highest standard of urban design. Urban design requires consideration of the form of a building and the form of a building is determined by its building envelope. This is demonstrated by the requirement in sub-cl (4)(b) to have regard to the form of the proposed development and whether it will improve the quality and amenity of the public domain. The form of a development can have significant amenity impacts on the public domain, regardless of the quality of its external appearance and detailed design.
The clause applies to "development involving the erection of a building" at sub-cl (2). A concept proposal is development involving the erection of a building, although it is not a development application for the erection of a building. A concept proposal involves the erection of a building because it secures the approved form of the future building on the site. The wording in sub-cl (2), "development involving the erection of a building" is in contrast to the wording in sub-cl (5)(a) "development in respect of a building". Development in respect of a building requires a development application consistent with the definition of development in s 1.5(1) of the EPA Act because that development must be in respect of, meaning for the purpose of, a building; whereas development involving the erection of a building need not necessarily be development for the erection of a building, but can be development associated with the future erection of a building, such as a concept proposal for a building envelope.
Consideration of a concept proposal for a building envelope must include, as part of the assessment of the concept proposal, matters such as heritage or streetscape constraints; whether a tower has an acceptable relationship with other towers in terms of separation, setbacks, amenity and urban form of the building envelope; the bulk and massing of a building envelope; permeability of pedestrian networks; impact on the public domain or special character areas; and whether the building envelope provides for an appropriate interface at ground level between the building envelope and the public domain. It is not possible to entirely postpone the consideration of the matters in sub-cl (4)(d)(iii), (iv), (v), (vi) (vii), (ix), (x), (xi) and (xii) to the design of the future building, because the form of the building can have a significant impact on each of these matters and can impede a future building, which is consistent with its concept approval, from successfully achieving these matters.

A proposal can only be availed of the building envelope bonus in sub-cl 7.10(8) of LEP 2011 on the basis of the later stage development application for the erection of a building, to enable the consent authority to consider all of the matters at sub-cl (4) and if a competitive design process has been held in relation to the development, at (5). The application of the design excellence clause to a development the subject of a concept development application is therefore inevitably a two staged process, as only the matters relevant to the form of a building in sub-cl 7.10(4) can be considered at the concept development application stage.
The applicant's interpretation of "development" in cl 7.10(2) is a narrow reading of the clause without reference to its textual context. "Development that involves the erection of a building" is a wider concept than the meaning of "development" in s 1.5 of the EPA Act. Sub-clause (2) should also be read in the context of the object of the clause to deliver, amongst other things, the highest standard of urban design. Urban design requires consideration of the form of the building, and the form of a building is the building envelope in a concept proposal. Interpreted this way, the relevant matters in the design excellence clause apply to a concept proposal.

Proposed amendment to LEP 2011

There is currently a planning proposal which includes a proposal to amend cl 7.4 of LEP 2011 to prohibit overshadowing of the protected area within Parramatta Square between 12 noon and 2pm on the winter solstice (exhibit 3, tab 22). The draft amendment to LEP 2011 has been exhibited; however, it is to be re-exhibited from 7 March until 4 April 2018 due to an omission in the previously exhibited material. The post-gateway review of the planning proposal is yet to be determined by the Planning Assessment Commission (now the Independent Planning Commission) (exhibit L, 4).
Currently, Council neither supports nor opposes the proposal to prohibit overshadowing of the protected area within Parramatta Square between 12 noon and 2pm on the winter solstice, despite previous contrary resolutions (exhibit L, tab 7).
Section 4.15(1)(a)(ii) of the EPA Act requires consideration of any proposed instrument that is or has been the subject of public consultation under the EPA Act and that has been notified to the consent authority as a relevant matter to the proposal. The weight to be given to a draft environmental planning instrument is proportionate to its certainty and imminence, although the level of consideration may differ depending on the purpose of the planning controls proposed (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 [5] - [7]).
I accept the applicant's submission that the planning proposal to change the terms of cl 7.4 of LEP 2011 is not certain at this stage, particularly because the wording of the draft cl 7.4 is unknown as so it is uncertain whether it will be introduced as a development standard or a prohibition; and the Council's current ambivalence to the proposed change may result in no change at all. I have therefore considered the proposal on the basis of the current planning regime.

Overshadowing of Parramatta Square

The Council's principal contention is that the proposed building envelope for Fellowship House would cause excessive overshadowing of the "protected area" shown in Figure 4.3.3.7.3 Public Space Set Out of DCP 2011 (the protected area) and the overshadowing of Parramatta Square is contrary to the objective of cl 7.4 of LEP 2011.
The applicant submits that cl 7.4(2) of LEP 2011 only applies if I conclude that the proposal is "likely to cause excessive overshadowing". If I conclude that the overshadowing of the public open space in Parramatta Square by the concept proposal is not excessive, then I am not obliged to consider the controls relating to overshadowing of public open space in 4.3.3 of DCP 2011, because under s 3.43(5)(b) of the EPA Act, the DCP provision has no effect to the extent that it is inconsistent or incompatible with a provision of the instrument.
I accept that the development consent issued for 4 and 6 Parramatta Square does not include outdoor dining areas (condition 203, exhibit D, tab 7) and so I have regarded the layout and use of the public space within the protected area of Parramatta Square as unresolved. I have had no regard to the pedestrian flow assessment shown in Figure 8 of the planning experts' joint report (exhibit 8, p 32) because it is inaccurate. I have instead considered the access principles shown in Figure 4.3.3.7.5 of DCP 2011.
As the building envelopes shown in exhibit H indicate the additional volume of the design excellence clause bonus (subject to condition 4, exhibits 11 and O), it follows that the building envelopes for the proposal represent the approximate volume commensurate with the 8:1 FSR development standard for the site. The precise numerical value for FSR cannot be calculated under the definition of gross floor area in LEP 2011 until the stage 2 development application proposal.
The planning experts agreed that the proposed Fellowship House building envelope overshadows the protected area for a period greater than 45 minutes between 12 noon and 2pm on the winter solstice, contrary to DCP 2011 controls C.3 and C.7 in 4.3.3.7 permitting a maximum of 45 minutes of overshadowing. The proposed Fellowship building envelope overshadows 11.5% of the protected area for 60 minutes, 8.4% for 75 minutes, 5.33% for 90 minutes, 2.4% for 105 minutes and 0.6% for the full two hours (exhibit G). Extract from exhibit G showing the portion and duration of overshadowing of the protected area in Parramatta Square and the realignment of Leigh Place to Civic Link
According to Ms Swan, the proposal's overshadowing of Parramatta Square during the lunch period on the winter solstice is reasonable. In Ms Swan's opinion, the following circumstances warrant a variation of the control:

There is significant tension between realising the development potential under the development standards in LEP 2011 and compliance with the DCP control for overshadowing, which is unreasonable because the DCP seeks to override the development standards and strict compliance with the control would represent a significant imposition on the development potential of the Fellowship House site;
The site is at the opposite end of Parramatta Square to St John's Cathedral so the impact of overshadowing is at the furthest end of Parramatta Square;
The overshadowing of Parramatta Square by the building envelope of Fellowship House is balanced by the proposal for Epworth House which does not overshadow Parramatta Square. The applicant's submission labelled this the "cumulative effect" of the combined overshadowing of Parramatta Square by Epworth House and Fellowship House;
Parramatta Square has not been designed and the area is currently an excavated site, so it is possible for the constraint imposed by the overshadowing of Parramatta Square by the concept proposal for Fellowship House to be taken into consideration in the design and layout of the public space;
The area of Parramatta Square impacted upon by the shadow of Fellowship Place is a pedestrian thoroughfare and not an area that will be used by the public to sit and eat lunch and this is demonstrated by the pedestrian desire lines shown on Figure 4.3.3.7.5 of DCP 2011,
The social benefit provided by the proposal is a reasonable trade off to the impact caused by the proposal.

The planning experts agreed that the eastern extent of the protected area shown in Figure 4.3.3.7.3 of DCP 2011 could be shortened to align with the western extent of the approved 3 Parramatta Square, as 3 Parramatta Square encroaches onto the former alignment of Leigh Place so that the façade of 3 Parramatta Place is 10.335m and 7.3m to the east of the eastern boundary of Fellowship House (exhibit D, tab 6, DA-1003 and exhibit D, tab 5, DA-3-A-2002 and 3000). I accept the agreement of the planning experts that the realignment of Civic Link on the western side suggests some adjustment to the eastern extent of the protected area in Parramatta Square, as the intention appears to be from the diagrams in DCP 2011 that the eastern extent of the protected area aligns with the western extent of Civic Link to the north. Given the encroachments of 3 Parramatta Square onto the former alignment of Leigh Place are varied, it is a question of which level of the façade of 3 Parramatta Square is used to determine the eastern extent of the protected area, so I make no determination as to the quantum of the overshadowing of the protected area that may be disregarded.
I do not accept the applicant's argument that the overshadowing of the protected area in Parramatta Square should be considered cumulatively in the sense that the building envelope of Fellowship House is balanced by the building envelope for Epworth House, because Epworth House does not overshadow Parramatta Square, nor do I accept that there is significant tension between realising the development potential under the development standards in LEP 2011 and compliance with the DCP control for overshadowing the protected area in Parramatta Square.
The site consists of three parcels of land; including the middle parcel of land containing the heritage listed Leigh Memorial Uniting Church. The cumulative volume of the concept proposal has been determined by reference to the FSR development standard of 8:1 applied the whole site area, including the parcel of land containing the Leigh Memorial Uniting Church. The so called tension has been created by unevenly distributing the majority of the volume, determined by reference to the FSR development standard applied to the whole site, into the Fellowship House building envelope. Consequently, the building envelope for Fellowship House occupies the majority of the eastern parcel (other than a small setback from the front boundary and the area to the south of the church) and extends for the full depth of the site to the maximum building height of 54m, with the potential to extend upwards under the design excellence clause (exhibit H).
Fellowship House is a building envelope that is much greater in volume than the building envelope anticipated by the development standards in LEP 2011, because the Fellowship House building envelope, considered in proportion to its own parcel of land, is significantly larger than the FSR development standard of 8:1 would have permitted. The volume of the Fellowship House building envelope contains the potential floor space conceptually allocated to the adjoining church site and part of the floor space allocated to the Epworth House site.

Impact of the proposal on the heritage significance of the Leigh Memorial Church and agreed heritage principles for the future built form of the proposal

The Council contends that the proposed building envelopes for both Epworth House and Fellowship House encroach on the heritage curtilage of the Leigh Memorial Uniting Church, which will adversely impact on the church's heritage significance.
The heritage experts agreed that they had no in principle objection to the two tall towers flanking the church as long as their "Design Excellence Recommendations" (exhibit 5) are followed in the design of Epworth House and Fellowship House and those designs include a visually restrained backdrop to the church and spire when viewed from Macquarie Street. The agreed Design Excellence Recommendations are incorporated into the conditions (exhibits 11 and O). I accept the agreement of the heritage experts and their agreement on the Design Excellence Recommendations.
Mr Abrahams noted that the most important view of the church is from the corner of Church Street and Macquarie Street looking south-east, as this is the vista which includes St John's Anglican Cathedral, the Parramatta Town Hall and the Leigh Memorial Uniting Church as a group of heritage buildings.
The heritage experts disagreed on appropriate adjustments to the building envelopes of Epworth House and Fellowship house to make the building envelopes consistent with their Design Excellence Recommendations (exhibits 18 and N). I am persuaded by Mr Abraham's more conservative building envelope which maintained setbacks for view corridors for the full height of the streetfront façades of the two building envelopes; although I accept Mr Brooks evidence that the success of any overhangs part way up the built form would depend upon how skilfully the modulation of the form of the building was achieved.
I agree with Mr Abraham's evidence that a Conservation Management Plan (CMP) for the Leigh Memorial Uniting Church should be prepared to inform a concept proposal for the site by, amongst other things, identifying important views of the church from the public domain and the extent those views should be preserved; although the absence of a CMP has not been determinative in this appeal.

Civic Link

The proposed Civic Link extends along Leigh Place, which forms the eastern boundary of the site. The alignment of the proposed Civic Link is not the same as Leigh Place, but is further to the west. The draft Civic Link Framework Plan has been exhibited by Council (exhibit 3, tab 23).
Development consent for a multistorey building at 3 Parramatta Square was granted on 7 August 2017 (exhibit D, tab 5). 3 Parramatta Square was the subject of an agreement between the Council and Walker Corporation for the development of the site (exhibit M, p 4). The western façade of 3 Parramatta Square encroaches onto Leigh Place, so that the setback from the eastern boundary of the site for overhangs on various upper levels is 7.3m and 10.335m and the setback from the eastern boundary of the site at ground level is 13.5m (exhibit D, tab 6, DA-1003).
The Council aims to achieve a minimum width of 20m along the Civic Link to safeguard view corridors and to ensure alignment with key heritage assets, according to the report on the draft Civic Link before Council on 10 July 2017 and this would require a 5.5m setback to the eastern boundary of the site (exhibit 3, tab 23, p 820). The applicant submits that no negotiations have been initiated by the Council in relation to an adjustment of the eastern boundary of the site.
The eastern property boundary of 5 Parramatta Place aligns with the eastern boundary of the site. 5 Parramatta Place is setback from its eastern boundary 6.665m above the ground level. At ground level, 5 Parramatta Place is further setback with a step at the 6.665m side setback (exhibit D, tab 6, DA-1003).
There is no necessity to make a finding regarding this issue; it remains a matter for negotiation between the parties.

Relationship between the proposal and 5 Parramatta Square

The development consent for 5 Parramatta Square was granted on 7 February 2018 (exhibit L, tab 6 and exhibit 14). The design of 5 Parramatta Square complies with the sun access plan established by 4.3.3 of DCP 2011, with the exception of a shadow cast by the proposed retractable spire (exhibit 14, p 20 and the shadow diagram). The protection of solar access during the lunch period on the winter solstice to the protected area in Parramatta Square has been a paramount constraint in the design of 5 Parramatta Square, which is clearly evident in the profile of the southern elevation.
The southern extent of the Fellowship House building envelope extends to its southern boundary adjacent to 5 Parramatta Square and up to the full height of 54m and potentially higher with the bonus volume under the design excellence clause. As a result, the Fellowship House building envelope towers over 5 Parramatta Square and forms a highly visible backdrop to 5 Parramatta Square when viewed from the public domain in Parramatta Square and other locations.
The proposal for 5 Parramatta Square locates services against the eastern end of the northern elevation and the architectural drawing set indicates that the assumption has been made in terms of the context of the 5 Parramatta Square site that there will be a built form positioned close to the boundary on the levels on the adjoining Fellowship House site behind 5 Parramatta Square (exhibit D, tab 6, DA-2396 and DA-2397).
The design of 5 Parramatta Square, the result of a design competition, provides a visually dramatic and celebratory backdrop to Parramatta Square. The interface between the future Fellowship House and 5 Parramatta Square will be critical to the successful urban design of the Parramatta Square precinct and Fellowship House should be appropriately restrained, deferential and decorous, both in terms of form and appearance, in its relationship to its flamboyant civic neighbour.

Conclusion

The fundamental issue in this matter is the overshadowing, and the duration of overshadowing, of a portion of the protected area of Parramatta Square during the lunch period on the winter solstice. The overshadowing of the protected area of Parramatta Square by the Fellowship House building envelope is excessive and contrary to the objective of cl 7.4 of LEP 2011 to protect public open space in Parramatta Square from overshadowing, because the volume of the Fellowship House building envelope fails to minimise overshadowing of the protected area.
I am not satisfied that the form of the Fellowship House building envelope exhibits design excellence because it detrimentally impacts on the amenity of the public domain in Parramatta Square.

Orders

The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 310/2017, for the demolition of existing buildings and a concept proposal for a staged mixed use development comprising two building envelopes at 99-113, 119 and 119A Macquarie Street, Parramatta, is refused. 3. The exhibits, other than exhibit 1, are returned.

Susan O'Neill Commissioner of the Court

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: 13 March 2018

(2003) 129 LGERA 195

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