Land and Environment Court New South Wales

• Medium Neutral Citation: Samadi Developments Pty Limited v City of Sydney Council [2014] NSWLEC 1138
• Hearing dates: 7 July 2014
• Decision date: 11 July 2014
• Jurisdiction: Class 1
• Before: Hussey C

Decision

(1)The appeal is upheld.

(2)Development consent to DA/2014/458 for the provision of two additional three-bedroom residential units forming a new top storey atop the mixed use building approved at 517-527 Elizabeth Street Surry Hills is granted, subject to the conditions in Annexure A.

(3)The exhibits may be returned except for 1, 4, 5, B, C and E.

• Catchwords: Development application: exceedance of height standard, visual impact in heritage conservation area, precedence.
• Legislation Cited: Sydney Development Control Plan 2012; Sydney Local Environmental Plan 2012; South Sydney Local Environmental Plan 1998; Draft Sydney Local Environmental Plan 2011
• Category: Principal judgment
• Parties: Samadi Developments Pty Limited (Applicant); City of Sydney Council (Respondent)
• Representation: Mr M Staunton with Mr G Hartley (Applicant); Ms A Pearman with Ms K Morrin (Respondent); Gadens Lawyers (Applicant); City of Sydney Council (Respondent)
• File Number(s): 10319 of 2014

Judgment

Background

1 This appeal was lodged against council's deemed refusal of a development application for two x three-bedroom units, forming a new top floor to a recently approved seven-storey mixed-use building located at 517-527 Elizabeth Street, Surry Hills.

2 The initial consent granted in 2012 was for the seven-storey building containing basement parking, four retail tenancies, thirty-three x onebedroom units, eight x two-bedroom units and one x threebedroom unit. There was a subsequent change in use approval to allow some of the units to be serviced apartments.

3 Insofar as a number of contentions were initially identified, some were addressed during the appeal process with the main issue concerning:

The height of the proposal in terms of its exceedence of the height development standard of 22 m in the LEP, with particular reference to the location of the site within the Cleveland Gardens Conservation Area.

4 This contention relates mainly to the visual impact of the two proposed rooftop levels and also the precedential effect of any approval, considering that there are a number of other neighbouring development sites in close proximity to the subject site.

The site

5 The site is located on the western side of Elizabeth Street and has a total area of 746 sq m, is orientated in an east - west direction and falls away slightly to the west towards Little Buckingham Street. The principal frontage of the site is to Elizabeth Street to the east (26.8 m), with a secondary frontage to Little Buckingham Street to the west.

6 It is within the Cleveland Gardens Heritage Conservation Area. Elizabeth Street is the eastern boundary of the conservation area. The closest building that is identified as a heritage item is located to the southwest at 86 Buckingham Street, being the Belvoir Street Baptist Church; a locally listed heritage item. Cleveland House, a state heritage item, is located to the northwest of the site.

7 The site is adjoined on the north by 507-515 Elizabeth Street, a sevenstorey mixed-use building in residential use on upper levels; and to the south by 529-531 Elizabeth Street, an eight-storey building known as the former Business Information Centre (BIC) and used for commercial purposes. To the east of the site, on the opposite side of Elizabeth Street, is the Opera Australia Opera Centre and residential terraces adjoin the site to the west along Little Buckingham Street.

8 The surrounding locality is characterised by a combination of retail, office, commercial, educational, residential and community uses. These uses occupy a mixture of larger scale contemporary buildings and smaller scale older developments and residential terraces such as those along Buckingham Street to the west.

9 There are a number of other sites in the surrounding area along Elizabeth Street that are either under construction or have recently received consent for development.

Planning controls

10 The following planning controls apply. The prevailing control is the Sydney Local Environmental Plan 2012 (LEP), under which the site is in the B4 mixeduse zone and the development is permissible. For this appeal, the LEP relevantly contains the following controls:

Height in metres: The site is subject to a height standard of 22 m under the LEP.

Floor space ratio: The site is subject to a Floor Space Ratio standard of 3.5:1 under the LEP.

11 Associated controls are contained in the Sydney Development Control Plan 2012 (DCP), including:

Height in storeys: The site is subject to a building height in storeys control of six (6) storeys under the DCP.

12 The approved development was approved at a transitional time as the former South Sydney Local Environmental Plan 1998 was the principal plan but regard was had to the Draft Sydney Local Environmental Plan 2011 (Draft Sydney LEP 2011) for assessment purposes. The Draft Sydney LEP 2011 was subsequently gazetted in December 2012, resulting in the current Sydney Local Environmental Plan 2012. The South Sydney LEP 1998 height control was 15 m and the floor space ratio was 2:1.

13 The other controls include:

(a) State Environmental Planning Policy 65 - Design Quality of Residential Flat Development;

(b) NSW Residential Flat Design Code 2002;

(c) State Environmental Planning Policy 2004 - BASIX;

(d) Sydney Local Environmental Plan 2012;

(e) Sydney Development Control Plan 2012; and

(f) City of Sydney Development Contributions Plan 2006.

The evidence

14 Detailed evidence was presented by:

• Mr P Jones - Council's town planner
• Mr A Betros - Consulting planner for the applicant

15 The planners assessed the proposal by way of a joint conference from which they generally agreed on the following points:

• That the upper component is visible from certain vantage points but is also not visible depending upon one's location. For example, the upper level is only partially visible along certain points of Elizabeth Street, and not visible along Little Buckingham Street but is more visible along certain sections of Buckingham Street and from the elevated position of Clisdell Street to the north of the Belvoir Street Theatre.
• There are no amenity impacts to surrounding buildings generated by the proposed height.
• That the height of 26.8 m is measured from the basement floor level from Buckingham Street. The height measured from Little Buckingham Street to the top of the lift overrun was stated to be 27.3 as shown in the section BB plan.

16 The first part of the assessment concerns the visual impact of the proposal. As a result of the site inspection it is apparent that the height has variable impacts due to the sloping topography of the site and surrounds and viewing opportunities. The main frontage of the site is to Elizabeth Street and it was agreed that the visibility is quite limited from much of Elizabeth Street.

17 However, an unavoidable element in the visual assessment is the presence of the large BIC building adjoining the site. It is a large tenstorey building that is noticeably higher than all other buildings in this section of Elizabeth Street. The building is unattractive and is listed in the DCP as a 'detracting building', which are buildings that are obtrusive to a heritage conservation area because of inappropriate scale, bulk, setback, setting, design or materials.

18 Accordingly Mr Betros says that the proposed height is justified in the subject circumstances because:

• The additional height sits comfortably in this high density context whilst the recessed nature of the additional level ensures that the additional height does not generate any adverse or unreasonable streetscape, heritage or amenity impacts.
• The recessed nature of the additional level provides for a reasonable transition between the tenstorey former BIC building and the seven-storey St Thomas mixed-use development.
• The setback of the two new units from the front and rear of the perimeter of the building minimizes the perception of the additional height form the public domain, particularly when viewed from Little Bucking Street at the rear due to its narrow nature.
• Views of the additional recessed level are limited to oblique angles of minor components or of minor components when viewed from a considerable distance (of at least 50 m). The combination of these assessments ensures that any visible components are not prominent but on the contrary discreet and indiscernible in this high density context.
• A site investigation around the blocks surrounding the site demonstrates that the additional height associated with the proposal is not offensive nor readily visible given that the additional part level is not in one's typical line of sight, being an elevated level.

19 However, Mr Jones disagrees that the addition would be barely perceptible but he conceded that the visual impact of the additional storey on this individual site would be limited.

20 Considering the viewing opportunities of the development, it appears the most concern is from Buckingham Street environs through the conservation area. In particular, this relates to views over the Baptist Church on the corner of Buckingham and Belvoir Streets.

21 The proposal was carefully viewed from this position and it appears to me that in the current context of other tall buildings, substantially against the BIC backdrop and adjoining high rise buildings that are approved, the proposal would have minimal visual impact due partially to its recessed setbacks from the edge of the building in the surrounding context.

22 Taking into account then the presentation of the western elevation to the conservation area, it is likely that about 2 m of building comprising of mainly glass and small parapet is all that will be viewed from Buckingham Street and it is not in a primary viewing corridor in this high density context, in my assessment.

23 In the consideration of the visual impact and the effect of the BIC, reference was made to the following cl 3.9.9 of the DCP:

3.9.9 Detracting buildings

Detracting buildings are buildings that are intrusive to a heritage conservation area because of inappropriate scale, bulk, setbacks, setting, design or materials. They do not represent a key period of significance and detract from the character of a heritage conservation area.

(1) Development on sites containing detracting buildings is to improve the contribution of the site to the character of the heritage conservation area.

(2) Alterations and additions to, or redevelopment of, detracting buildings are to:

(a) remove inappropriate elements or features that are intrusive to the heritage significance of the heritage conservation area; and

(b) respect the prevailing character of the area and street in terms of bulk, form, scale and height.

24 According to Mr Betros, the approval of the proposal would provide a useful transition from the ten-storey BIC and provide some marginal screening of its northern wall. Whilst Mr Jones did not agree with the transitioning effect, it does seem to me that from the limited observation points in the conservation area, the transitional effect could be beneficial to mitigation to some extent the overbearing presence of the 'brutal' appearance of the BIC building.

25 The second part of Mr Jones' objection to the proposal concerns the precedential effect of the approval of this addition. He says that there are a number of other buildings along this section of Elizabeth Street that could follow this precedent and seek increased heights. This outcome would be contrary to Council's intended future character because reference to the 'Indicative Elizabeth Street Elevation' plan (exhibit 6) shows there is a high level of consistency with the height of approved and proposed redevelopment properties.

26 However, in response to this position I note the submissions for the applicant that there are specific circumstances that apply to the subject site. Firstly, the subject site adjoins the BIC and it can provide a beneficial transition to mitigate the excessive overbearing height of the BIC.

27 Next, there is a FSR development standard of 3.5:1. The proposal comfortably complies with this having a FSR of 3.38:1, which may not apply to other redevelopments.

Conclusion

28 Having considered the various merits of the proposal I note that cl 4.6 of SLEP allows for exceptions to development standards such as the height standard. It provides:

4.6 Exceptions to development standards

(1) The objectives of this clause are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(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.

(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 Director-General has been obtained.

29 Accordingly, the applicant provided a s 4.6 written request in response to the height development standard as follows:

Clause 4.6 Height:

1. The objectives of this clause are as follows:

a. to ensure the height of development is appropriate to the condition of the site and its context,

Assessment: It is considered that the proposed height satisfies the height objectives as the proposed height is appropriate in this high density context which contains numerous buildings of similar or greater scale. The recessed nature of the additional height ensures the overall built form and height will not appear out of context in this locality as shown below. In fact, the recessed nature from the front and rear facades ensures that the additional height will be barely perceptible as shown in the sight lines below. ...

The proposed additional height beyond the 22 m height limit is also not responsible for any loss of views and is also not responsible for any amenity impacts such as overshadowing or privacy. Therefore, the additional height on the subject site is justified on the basis of benign streetscape impacts, the provision of high quality residential units associated with the additional height and lack of external impacts to surrounding properties.

b. to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas,

Assessment: The site is located in a heritage conservation area, which is part of the Cleveland Gardens Estate.

Given the limited degree of visibility of the additions, it is considered that the proposed additional part level of a negligible impact upon the conservation area. The integrity of the contributory components of the conservation area are unaffected by the proposal as is the nearest heritage item to the south west, being the Belvoir Street Baptist Church.

1. Consistency with the objectives of the B4 Mixed Use Residential Zone

Objectives of the zone

● 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 ensure uses support the viability of centres.

Assessment: The proposed additional residential units to the existing mixed use development which already contains residential units is considered to be of benefit as it provides for alternative style of residential accommodation being three-bedroom units. The additional accommodation is also provided in a manner which has no adverse streetscape or amenity impacts whilst providing for excellent internal amenity. Therefore, the proposed residential units are compatible with the existing uses on the subject site and also with the surrounding site. The proposal and its associated height thereby satisfies the zone objectives under the LEP.

2. Consistency with State and Regional planning policies

Assessment: The proposed additional height is not in conflict with any state or regional policy but rather is consistent with the policy of urban consolidation where it is sought to provide greater height and density near public transport and associated facilities. The site certainly satisfies this intention given its proximity to Central Station, Prince Alfred Park, employment and restaurants and cafes.

3. The variation allows for a better planning outcome

Assessment: It is considered that the provision of the two additional units on the site represents a better planning outcome given that it assists in getting closer towards the applicable FSR on the subject site. It is considered wasteful and inefficient not to provide the maximum permissible for floor space on this site given its convenient nature as outlined above. The lack of any visual or amenity impact associated with the proposal confirms that the proposal represents a better planning outcome than that which exists and that which could be compliant.

4. There are sufficient environmental grounds to permit the variation

Assessment: The high internal performance of the two units in regard to unit size, private open space, storage, solar access, ventilation and access demonstrates that there are sufficient environmental grounds to permit the proposed height.

Externally there are no adverse environmental grounds associated with the additional height given that there is no adverse streetscape or external amenity impacts in regard to loss of view, overshadowing or privacy.

5. The variation is in the public interest

Assessment: The provision of two additional three-bedroom units is considered to be in the public interest as it provides for additional residential accommodation without compromising the streetscape or external amenity of any surrounding property.

30 Therefore, having considered the evidence, the submissions and undertaken a comprehensive view I am satisfied that this application merits consent.

31 As the primary issue in this matter concerns the variation to the height development standard, I have considered both the cl 4.6 written request together with the other supporting evidence presented, which the parties agree forms part of the assessment process.

32 In the circumstances then, considering the context of the proposal on the boundary of the conservation area and the surrounding high density buildings and its location adjoining the detracting BIC building, I am satisfied that the objectives of the development standard are achieved and that strict compliance with the standard is unreasonable in the circumstances.

33 I consider the approval of the application will result in a marginal improvement in the Elizabeth Street streetscape due to the transitional effect for the BIC building and it will not cause any material impact on the visual impact on the conservation area. In this regard I do not consider the proposal is antipathetic to the DCP locality principles for the Prince Alfred Park East area or the controls in cl 3.9.6 dealing with the heritage conservation areas.

34 Furthermore, my assessment is that the proposal does not warrant refusal on precedential grounds because I understand from the examples that whilst Council has approved other developments heights, nevertheless all variation proposals have to be assessed on merit and in their respective context. In this case, within the context of the adjoining unattractive BIC building and provision of some transitional screening and having significant setbacks from the edge of the building, together with the building remaining under the allowable FSR controls, leaving me to conclude that the proposal will result in a better planning outcome and the s 4.6 written request should be allowed. In this regard I rely on the opinion of Mr Betros.

Court Orders

(1) The appeal is upheld.

(2) Development consent to DA/2014/458 for the provision of two additional three-bedroom residential units forming a new top storey atop the mixed use building approved at 517-527 Elizabeth Street Surry Hills is granted, subject to the conditions in Annexure A.

(3) The exhibits may be returned except for 1, 4, 5, B, C and E.

R Hussey

Commissioner of the Court

Decision last updated: 15 July 2014