Land and Environment Court New South Wales Medium Neutral Citation: Emag Apartments Pty Limited v The Council of the City of Sydney [2023] NSWLEC 1392 Hearing dates: Mention on 4 May 2023 Date of orders: 25 July 2023 Decision date: 25 July 2023 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld. (2) Development application D/2021/304 for alterations and additions to an existing building, including demolition and construction of an 18-storey boarding house, ground floor retail, podium car parking, two levels of basement with pool, ancillary storage, plant, garbage rooms and bicycle parking at 93-105 Quay Street, Haymarket (Lot 2 DP 408335) is determined by the grant of consent subject to the conditions in Annexure A. (3) All exhibits are returned except for Exhibits 1, C and the final architectural plans filed with the Court on 28 April 2022 which are to be retained. Catchwords: DEVELOPMENT APPLICATION: consent sought for substantial demolition of existing building and construction of a twenty-storey boarding house – remitted matter – whether the proposed development exhibits design excellence – appeal upheld Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.15 Environmental Planning and Assessment Regulation 2000, cl 55 Environmental Planning and Assessment Regulation 2021 Land and Environment Court Act 1979, s 56A Sydney Local Environmental Plan 2012, cll 1.8A, 4.6, 6.21 Sydney Local Environmental Plan (Amendment No 64) 2012 Cases Cited: Aloke Holdings Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1177 Emag Apartments Pty Ltd v The Council of the City of Sydney [2022] NSWLEC 1110 Emag Apartments Pty Ltd v The Council of the City of Sydney (No 2) [2022] NSWLEC 1317 Lateral Estate Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 6 The Council of the City of Sydney v Emag Apartments Pty Limited [2023] NSWLEC 23 Toga Penrith Developments Pty Ltd v Penrith City Council [2022] NSWLEC 117 Zhiva Living Dural Pty Ltd v Hornsby Shire Council [2019] NSWLEC 1222 Texts Cited: Sydney Development Control Plan 2012 Category: Principal judgment Parties: EMAG Apartments Pty Limited (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: A Pickles SC (Applicant) J Lazarus SC (Respondent) Solicitors: Mills Oakley (Applicant) Council of the City of Sydney (Respondent) File Number(s): 2021/190330 Publication restriction: No Judgment 1. COMMISSIONER: I have been given this matter on remitter from the decision of Duggan J in The Council of the City of Sydney v EMAG Apartments Pty Limited [2023] NSWLEC 23 ("the s 56A Decision") which at [117] set aside Order 1 and 3 made on 20 June 2022. The s 56A judgment arose from an appeal by the Council of the City of Sydney against the whole of the decisions contained in judgments delivered on 11 March 2022 in Emag Apartments Pty Ltd v The Council of the City of Sydney [2022] NSWLEC 1110 ("First Judgment") and 20 June 2022 in Emag Apartments Pty Ltd v The Council of the City of Sydney (No 2) [2022] NSWLEC 1317 ("Second Judgment"). 2. Whilst the proceedings have been remitted, the s 56A Decision makes no finding of error in the factual outline of the proceedings or the sections of the judgment headed: issues, the site, public submissions, expert evidence, preconditions to the grant of consent, Should the maximum height standard be varied, Does the development vary the applicable maximum FSR, Should the maximum FSR standard be varied, and the merits of the proposed development made in the First Judgment. I note that nothing in the Revision 12 architectural plans affects the calculation of the maximum building height of the proposed development or its FSR. As such, the findings in the First Judgment of satisfaction of the precondition at cl 4.6 of Sydney Local Environmental Plan 2012 (LEP 2012) in relation to the variation to these development standards remain met by the proposed development for the reasons given in the First Judgment at [22]-[35] and [48]-[54]. As such I adopt paragraphs [2]-[54], [86]-[126 of the First Judgment in this judgment without duplication for the sake of brevity. 3. The parties have filed written submissions and submissions in reply in the remitted appeal. The parties did not file additional evidence. 4. The parties agree that the effect of Order 3 of the s 56A Decision is that the whole of the proceedings have been remitted for determination in accordance with her Honour's reasons. Further, they agree that what is required is a redetermination of those matters which were affected by the s 56A Decision. The primary matter is whether the provisions of cl 6.21(3) of LEP 2012, as it was in effect at the lodgement of the development application on 31 March 2021, are met by the proposed development. Namely, whether, having regard to the matters at cl 6.21(4), in the opinion of the consent authority, the proposed development exhibits design excellence. 5. A further matter in the s 56A Decision was the validity of the amendment of the architectural plans of the proposed development pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). The parties accept and I agree that the EPA Regulation continues to apply despite its repeal by the Environmental Planning and Assessment Regulation 2021 as the application was made, but not finally determined prior to 1 March 2022. Clause 55(1) of the EPA Regulation can only be satisfied by the lodgement of the amendment on the NSW Planning Portal with the agreement of the consent authority. It is agreed between the parties and accepted at [90] of the s 56A Decision, that the amended development application (incorporating the Revision 12 architectural plans) was uploaded to the NSW Planning Portal on 27 July 2022. Planning Framework 1. The development application was made, but not finally determined prior to the commencement of Sydney Local Environmental Plan 2012 (Amendment 64) to LEP 2012. In part, Amendment 64 renamed cl 6.21 Design Excellence as clause 6.21C Design Excellence. Amendment 64 also included a savings provision at cl 1.8A(5)(a) of LEP 2012 which has the effect that the amendments do not apply to the development application as it was not finally determined before the commencement of the amendments. 2. Clause 6.21: Design Excellence in LEP 2012 states: 6.21 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 Plan 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 issues and streetscape constraints, (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— (i) 55 metres on land in Central Sydney, or (ii) 25 metres on any other land, (b) development having a capital investment value of more than $100,000,000, (c) development in respect of which a development control plan is required to be prepared under clause 7.20, (d) 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 or 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) A building demonstrating design excellence— (a) may have a building height that exceeds the maximum height shown for the land on the Height of Buildings Map by an amount, to be determined by the consent authority, of up to 10% of the amount shown on the map, or (b) is eligible for an amount of additional floor space, to be determined by the consent authority, of up to 10% of— (i) the amount permitted as a result of the floor space ratio shown for the land on the Floor Space Ratio Map, and (ii) any accommodation floor space or community infrastructure floor space for which the building is eligible under Division 1 or 2. (8) Nothing in this clause permits a consent authority to grant development consent to the following development— (a) development that would result in any building on land projecting higher than any sun access plane that is taken to extend over that land by operation of Division 3, or (b) development that results in any building causing additional overshadowing of a kind specified in Division 3, or (c) development that results in any building on land in Area 1 or Area 2 on the Height of Buildings Map having a height greater than the height of the building that was on the land at the commencement of this Plan. (9) In this clause— building demonstrating 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. capital investment value has the same meaning as in the Environmental Planning and Assessment Regulation 2000. competitive design process means an architectural design competition, or the preparation of design alternatives on a competitive basis, carried out in accordance with the City of Sydney Competitive Design Policy. 1. Clause 6.21(3) imposes a jurisdictional requirement on the consent authority not to grant consent to development to which the clause applies unless it forms the opinion that the proposed development exhibits design excellence. Clause 6.21(4) specifies the mandatory relevant considerations in considering whether the development exhibits design excellence. The list of matters at cl 6.21(4) of LEP 2012, whilst mandatory are not exhaustive: Toga Penrith Developments Pty Ltd v Penrith City Council [2022] NSWLEC 117. 2. Further, as I stated in Aloke Holdings Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1177 at [85] the list of matters at cl 6.21(4) are to be considered cumulatively as matters which, when considered together, determine whether the proposed development as a whole, exhibits design excellence. The Respondent's criticisms 1. In accordance with the Court's directions in the First Judgment, the Applicant filed amended architectural plans (Revision 12) with the Court on 28 April 2022. Further, the Respondent filed updated conditions of development consent. In addition, the Respondent provided written submissions addressing, in part, the concerns of the Council's urban design expert that arose from the retention of the encroaching structures. That feedback is extracted in the following: * Level 17: Garden in the south western corner That the garden is entirely covered by the retained roof. The garden has a retained glazed wall and columns along its southern edge. The two large trees are still depicted on the plan but would not be viable due to the wall and roof. * Level 16 & 17: Retention of the glazed southern elevation The retained glazing is not suitable for the proposed layout, so it is proposed to be retained in its present condition, with solid walls located directly behind it. The glazing appears to be clear with potentially some failing frosted film behind it. This part of the building is visible from the Goods Line. * Level 5-15: Retention of part of the balcony and all of the balustrade on the southern boundary. The balcony is retained, and part of it is enclosed. The balustrade is retained in its entirety, which results in a portion of the balustrade that will be directly affixed to solid wall. This will be evidence on the southern façade from Levels 8-15. 1. The Respondent urges the Court to accept the nominated concerns of Ms Pressick that, in effect, the retained elements of the building that are located over the building are inadequately integrated into the proposed development. They note that Ms Pressick concludes that the changes effected in the Revision 12 plans resulted in a scheme which did not exhibit design excellence and further that the Applicant should be given an opportunity to redesign the building to better accommodate the changes arising from the retention of works over the boundary. 2. In their written submissions the Applicant makes the following arguments in response to the criticisms of Ms Pressick: "17.…To the extent those comments are taken to form part of the Council's submissions, they do not detail why the development in its revised form does not demonstrate design excellence and no explanation is given as to why this is not achieved or how it can be. 18. As a consequence of the amended plans which no longer propose works over the boundary, a number of built elements of the existing building are to remain as detailed on plans 2501, 2502 and 2503: (a) Level 17 garden in SW corner would be covered by a retained roof, which Ms Pressick contends brings into question the viability of the garden in this location; (b) Retained glazing on levels 16 and 17 would have a solid wall behind it and while it is currently obscured, the frosted film is failing; (c) Balconies on Levels 5-15 along the southern boundary are to be retained in situ with glazing to abut a solid wall. 19. The Court will be satisfied that the level 17 garden, which is roofed, if necessary, can be conditioned to have species suited to covered conditions. The whole of the rooftop garden was to have a reticulated water supply, but species that are suited to shady conditions can be selected. There is no necessity for there to be large trees in the southern corner garden. The garden was always intended to be a non-trafficable area adjacent to the level 17 6 communal room. This aspect does not mean that the proposal, as a whole, does not exhibit design excellence in the integration of landscape design as required by cl 6.21(4)(xii). 20. Ms Pressick does not take issue with the retention of the glazing on levels 16 and 17, but rather the condition it is in currently as not demonstrating design excellence. The fact that the retained glazing has failing frosted film does not preclude the failing frosting being repaired to comply with agreed condition 1 of consent which would require the "EXISTING OPAQUE FILM TO GLAZING TO BE RETAINED" as is shown in elevation 2 in Drawing 2503. Alternatively, a condition could lawfully be imposed requiring those plans be amended and provided to Council for approval prior to CC demonstrating the removal of all opaque film. It is submitted that neither the repair nor removal of film from glass is "demolition" for which owner's consent would be required. Further, if removal was necessary by condition, the same condition could require that a patterned, perforated or stencil infill be installed on the outside the new internal wall within the boundary or on the inside of the glazing, inside the boundary, to disguise the wall beyond the glass from the public domain. 21. Similarly on levels 5-15 a patterned, perforated or stencilled screen can be installed on the inside of the balustrade to disguise the wall beyond." (Applicant's written submissions dated 19 April 2023) 1. Further, the Applicant argues that the Respondent is overly focused on the minutiae of the elements of the retained building, rather than looking at the whole of the development in evaluating whether the development exhibits design excellence. The Applicant's proposed amended condition 1. The Applicant proffers the following proposed additions (emphasis added) to Condition 3 of conditions consent in response to the, what they characterise as minor, criticisms of Ms Pressick of the Revision 12 plans: "(3) DESIGN MODIFICATIONS The design of the building must be modified as follows: … (i) The garden area in the southwest corner of Level 17 is to be planted with species suited to an indoor character in recognition of the roof over this area. (j) The walls to be erected behind the glazing of south facing windows on levels 16 and 17 are to be finished with a solid or patterned material facing towards the glazing that provides a high-quality external appearance. Prior to the issue of a Construction Certificate, the following is to be submitted to and approved by Council's Area Coordinator Planning Assessments / Area Planning Manager: i. The modifications in (a) to (j) above; and ii. For the Kitchenette on Level 3, detailed sections and specifications of materials and finishes with a certification from a suitability qualified building consultant that demonstrates that the floor to ceiling height of that area meets the requirements of the BCA." (Applicant's written submissions dated 19 April 2023) 1. The Respondent relies on two decisions of the Court to argue that the imposition of the above condition should be disregarded by the Court in the consideration of cl 6.21 of LEP 2012. Those decisions being: Zhiva Living Dural Pty Ltd v Hornsby Shire Council [2019] NSWLEC 1222 at [39]-[41] ("Zhiva Living v Hornsby") and Lateral Estate Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 6 at [81]. The Respondent argues that as the wording of cl 6.21 is focused on 'the proposed development', the Court must be satisfied that the development for which consent is sought in the development application exhibits design excellence, not that development as amended by any conditions of consent. The Respondent argues that this is because the amended development, resulting from the imposed conditions, does not form part of the proposed development until post determination. 2. The Applicant disagrees with the submissions of the Respondent that, in effect, a jurisdictional precondition cannot be satisfied by a condition of consent. Further, they argue that the decision of the Court in Zhiva Living v Hornsby is not authority for that principle, arguing that in those proceedings, the Court did not in fact determine that matter. 3. Further, the Applicant submits that, for the purposes of cl 6.21 of LEP 2012, a "development", the term used in the text of the provision, can be comprised of that which is contained in the development application such as plans, as well as any condition of consent. The Applicant argues: "10. …The fact that cl 6.21 is expressed as a precondition to the grant of consent does not mean that proposed conditions cannot form part of the satisfaction. … 15. The key element here is not that the matter proposed by condition is satisfied before consent is granted, but only that the decision maker can form an opinion about the development, whether that be exhibited in the plans, other documents or the proposed conditions." (Applicant's written submissions dated 2 May 2023) 1. Finally, the Applicant submits that whilst it proffers the condition extracted at [12] as a means of addressing the concerns of the Respondent, it does not suggest that the conditions are essential to the Court satisfying itself that design excellence for the scheme as a whole has been met. 2. In undertaking my assessment of design excellence in the following section, I do not rely on the modifications to the proposed development sought by the additional condition extracted at [14]. My findings on the satisfaction of cl 6.21 Design Excellence is directed to the development application as amended by the Revision 12 plans. Design Excellence: Matters for consideration Whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved. 1. The matter at cl 6.21(4)(a) of LEP 2012 requires consideration of three components: firstly, the architectural design, secondly the materials proposed for the development and finally the detailing proposed. That consideration needs to be made in the context of the building type (a boarding house) and its location. 2. I am satisfied that the proposed development, when completed, will exhibit a high standard of design and materials appropriate to the proposed boarding house use for three reasons. Firstly, the selection of material and the detailing proposed is reflective of its location and enables the Site to be visually integrated within its urban precinct. Secondly, the materials proposed are durable and provide modulation to the façade design. Thirdly, the design of the ground floor retail space, entry and foyer will improve street activation to the extent possible within the constraints of providing the necessary building services and vehicular access. 3. Further, I am satisfied that the internal design of the development and the boarding rooms is a well-considered reconfiguration and addition to an existing building which allows for retention and reuse of materials whilst ensuring appropriate amenity for future residents and users. Such adaptive reuse involves inherent complexity in optimising the retention of structure and materials to reduce demolition, balanced against ensuring the efficiency and amenity of the new use. Such a balance of achievement of adaptive reuse, material retention and ensuring good amenity for a new use is indicative of design excellence in architectural design, materiality and detailing. I am satisfied that such balance is achieved in the proposed development. 4. As noted in the First Judgment at [105], the Respondent raises three principal concerns with the amenity of the boarding rooms. Firstly, the ability of the room designs to accommodate use by boarders sharing a boarding room being on different work shifts. Secondly, the adequacy of provision of laundry and kitchen facilities. Thirdly, whether the boarding rooms have adequate storage. 5. Further, the Respondent and their expert raised concerns about the adequacy of the information in the architectural plans. They argue that this inadequacy raises the potential for the boarding rooms (and other internal spaces) to be impacted by existing or proposed structures, in particular columns. In the First Judgment at [119]-[123] I made findings on the Respondent's contentions about the amenity of the boarding rooms, preferring the evidence of Mr Cadogen and concluding that those concerns did not warrant the refusal of the development application. I adopt those findings and conclusions in this judgment. Further, having reviewed the Revision 12 plans, along with my comments at [22], I am satisfied that a high standard of architectural design, materials and detailing will be achieved by the internal design of the proposed development. 6. By reference to the architectural plans, the proposed development provides the following indoor communal facilities: Level 3: * Movie Theatre * Common Laundry * Games Room * TV Room * Yoga Studio * Lounge Area * Multipurpose training and Seminar space * Two study and reading rooms * Kitchenette Levels 4-15 * Communal rooms on each floor 1. I note that in their joint planning report, the planning experts reached agreement that, based on agreed amendments that have subsequently been incorporated into the architectural plans, the control at clause 4.4.1.4(1) directed to the minimum communal space requirements for communal spaces of Sydney Development Control Plan 2012 (DCP 2012) is met by the amended plans. As discussed at [91]-[93] of the First Judgment, I am satisfied that the design of the Level 3 communal open spaces, in particular the location of the proposed uses and the proposed floor to ceiling height are acceptable. I am satisfied that the range of communal spaces provided, their functionality and diversity provide a good range of opportunities for future residents to congregate and recreate. 2. As noted at [96] of the First Judgment, the planning experts agree that the proposal satisfies and exceeds the requirements of DCP 2012 in relation to the provision of communal open space. At [101] of the First Judgment, I accepted that the requirements of DCP 2012 in relation to the quantum of communal open space were met. Further, at [104] I found that: "[104] Further, I am satisfied that on merit the communal open spaces proposed will be satisfactory. By reference to the landscape plans in evidence, in particular the cross sections, I am persuaded that the layered planting will ameliorate any adverse wind effects on the upper-level communal open spaces. However, I am further persuaded that if such wind effects are found by the operator to require further amelioration, such barriers or deflection required to achieve such amelioration could be comfortably accommodated within the planter beds or as free-standing structures. I accept Mr Mead's evidence in this regard. In determining the development application, I have considered how the proposed development addresses any environmental impact arising from wind effects and I am satisfied that those impacts do not warrant the refusal of the development application." 1. I adopt the preceding findings and conclusions in this judgment. 2. Ms Pressick criticises the communal open spaces proposed in the Revision 12 plans principally on the basis that the Level 17 garden in those plans is roofed and will retain glazing on its southern side. These retained components will, in her view, affect the amenity of the communal open space and the feasibility of the landscaping proposed for it. When considering Ms Pressick's criticisms, I have given weight to the compliance of the development with the planning controls in DCP 2012 and the range of communal open space proposed in the development as a whole. I am satisfied these criticisms are not sufficient to support a conclusion that, overall, the proposed development does not demonstrate a high standard of architectural design, materials and details. 3. Having considered the further comments of Ms Pressick, I remain satisfied that the architectural design, materials and details of both the internal and external design of the proposed development is indicative of design excellence. In considering her comments I have given weight to the fact that the proposed development is an adaptive reuse building type which will allow for the retention of the existing embodied energy in the building through the retained materials. In my view, the proposed development, overall, demonstrates a high standard of architectural design that will result in the retention of much of the materiality of the existing building which offsets any minor detriment arising from the integration of the retained portions of the building encroachment. 4. Having considered the matters at cl 6.21(4)(a), I am satisfied that the development exhibits a high standard of architectural design, materials and detailing appropriate to the building type and location. Whether the form and external appearance of the proposed development improve the quality and amenity of the public domain. 1. As noted at [21], I find the design of the building will have architectural interest with well-proportioned facade through articulation and modulation of design, the use of contrasting materials (for example metal screens, brick work at podium levels, and glazed balustrading). The materials chosen will make a positive contribution to the character of the Haymarket location. 2. Ms Pressick criticises the Revision 12 plans on two grounds, principally centred on the integration of retained elements into the proposed development, see [10]. To the extent that the components of the building criticised by Ms Pressick will impact on the form and external appearance of the development and its potential to improve the amenity of the public domain, I am satisfied the following three factors outweigh those criticisms: * Firstly, the areas of criticism would not be readily visible to the casual observer given their limited extent within the overall development. In short, I do not agree that the changes to which she refers individually or collectively support a conclusion that the development as a whole does not exhibit design excellence. * Any detrimental impact from these areas of criticism is offset by the positive benefits that arise from the proposed development for the quality and amenity of the public domain. Those being the activation of Quay Street at ground level from the proposed retail/commercial space and the visual integration of the building within its urban precinct noted at [21]. * The partial retention of the existing building fabric as part of the proposed development, the three matters discussed at [21] and the inclusion of ground floor retail/commercial are positive elements that support a conclusion that the form and external appearance of the proposed development will improve the quality and amenity of the public domain. 1. Having considered the matters at cl 6.21(4)(b), I am satisfied that the form and external appearance of the proposed development improve the quality and amenity of the public domain. In reaching this conclusion I have given weight to the compatibility of the proposed development with the existing buildings in the context and the setback of the new part of the building from the adjoining heritage item at 169-179 Thomas Street. Whether the proposed development detrimentally impacts on view corridors. 1. The proposed development will have no impact on view corridors as the building envelope is predominately the same as the existing building. 2. There are no identified view corridors in any planning instrument relevant to the subject site. 3. Having considered the matters at cl 6.21(4)(c), I am satisfied that the proposed development does not detrimentally impact on view corridors. How the proposed development addresses the suitability of the site for the development. 1. I am satisfied that the development application has addressed the suitability of the use for the site by ensuring street activation through the introduction of new retail tenancies at ground floor, activating existing basement areas and undertaking alterations and additions to the existing building that allow for the new boarding house use whist responding to the site constraints of an inner-city locality. 2. Having considered the matters at cl 6.21(4)(d)((i), I am satisfied that the proposed development is suitable for the site. How the proposed development addresses the existing and proposed land use mix. 1. As noted in the preceding, the proposed development allows for the adaptive reuse of an existing mixed-use development (serviced apartments) on the subject site. The proposed development allows the reuse and reinvigoration of a site that is well located to public transport and other services for a new use which is consistent with the objectives of the B8 Metropolitan Centre zone in LEP 2012, namely: • To recognise and provide for the pre-eminent role of business, office, retail, entertainment and tourist premises in Australia's participation in the global economy. • To provide opportunities for an intensity of land uses commensurate with Sydney's global status. • To permit a diversity of compatible land uses characteristic of Sydney's global status and that serve the workforce, visitors and wider community. • To encourage the use of alternatives to private motor vehicles, such as public transport, walking or cycling. • To promote uses with active street frontages on main streets and on streets in which buildings are used primarily (at street level) for the purposes of retail premises. 1. I note that Boarding houses and retail premises are permissible with consent in the B8 Metropolitan Centre zone and on that basis is consistent with the desired land use mix sought by LEP 2012 for the locality. 2. As noted at [33], I am satisfied that the development promotes an active street frontage for the site by the introduction of retail tenancies. Such uses are compatible with the land use mix proposed by the zoning. 3. The existing mixed use development on the site comprises serviced apartments. The proposed development proposes retail/commercial use on the ground floor and boarding house use for the remaining floors. The site is directly adjoined by a 16-storey building used for student accommodation and is located within 350m of Central Station. I am satisfied that the proposed development positively addresses the existing and proposed land use mix. How the proposed development addresses any heritage issues and streetscape constraints. 1. As noted at [33], I am satisfied that the proposed development is compatible with the existing streetscape and built form of the locality, including having an appropriate relationship with the adjoining heritage item. Further, as noted at [21] I am satisfied that the proposed development will make a positive contribution to the streetscape through design and articulation. I am satisfied that the proposed development positively addresses the heritage and streetscape constraints. How the proposed development addresses the location of any tower proposed. 1. As the proposed development is an adaptive reuse of an existing building, much of the building bulk and form is retained from the existing development. The alterations and additions proposed are consistent with the existing building footprint and as noted at [34] the built form is set back from the adjoining heritage item at 169-179 Thomas Street. I am satisfied that the proposed development addresses the location of the proposed tower element. How the proposed development addresses the bulk, massing and modulation of buildings. 1. Given that the proposed development is an adaptive reuse of an existing building, the bulk and massing of the building proposed is of less relevance to the development application. 2. I find the design of the building will have architectural interest with well proportioned facade through articulation and modulation of design, the use of contrasting materials (for example metal screens, brick work at podium levels, and glazed balustrading). The materials chosen will make a positive contribution to the character of the Haymarket location. 3. I am satisfied that the bulk, massing and modulation of the building proposed has been addressed in the proposed development. How the proposed development addresses street frontage heights. 1. The building typology of the design reinforces the base/middle/top character of the adjoining building and creates a conformity of street frontage height with the existing building at 107 Quay Street. Further, the façade rhythm of solid and void formed in the base of the building through fenestration creates a rhythm that is reflective of the internal planning of the building and is of a readable pedestrian scale. 2. I am satisfied that the development addresses street frontage heights. How the proposed development addresses environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity. 1. I repeat my findings at [104] of the First Judgment in relation to the potential for wind effects. 2. As discussed in the preceding, the proposed development enables the adaptive reuse of the majority of the existing building in lieu of its demolition and replacement. In effect, the development application gives a longer life to the existing materials and embodied energy contained in the retained elements. I am satisfied that such an approach achieves sustainable design. 3. On the basis of the evidence, and my own review of the proposed development, there are no significant environmental impacts arising from the change of use and alterations and additions proposed. I am satisfied that the overshadowing, visual impact and privacy impacts for the adjoining properties are largely the same, or improved, from the existing building. The proposed development proposes adequate privacy relationships internally and to adjoining properties. These matters are not in contention between the parties. 4. I am satisfied the proposed development addresses the nominated environmental impacts. How the proposed development addresses the achievement of the principles of ecologically sustainable development. 1. I accept that the proposed development contributes to the principles of ecologically sustainable development through the adaptive reuse of the existing building. Finding new uses for old buildings significantly reduces the energy consumption associated with demolishing a structure and building a new one to replace it. How the proposed development addresses pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network. 1. As noted in the preceding, the proposed development will enhance street activation through the introduction of a ground floor retail/ commercial use. Further, the reduction in width of the existing driveway will have a positive effect on the existing pedestrian experience. 2. I note that the basement provides for significant bicycle parking and service areas. 3. I am satisfied that the proposed development addresses pedestrian, cycle, vehicular and service access and circulation requirements including the permeability of the pedestrian network. How the proposed development addresses the impact on and any proposed improvements to the public domain. 1. My preceding comments at [21, 32, 33 and 47] are relevant to this factor, they are adopted here in support of my view that the proposed development appropriately addresses the public domain and will result in an improvement to it. How the proposed development addresses any impact on any special character area. 1. The subject site is not in a nominated special character area. How the proposed development addresses achieving appropriate interfaces at ground level between the building and the public domain. 1. The preceding comments at identify the positive attributes of the proposed development at ground level as it interfaces with the public domain. In my view, those positive interfaces include the introduction of proposed retail/commercial use, the narrowing of the driveway, the façade improvements in both form and materials and the compatibility of the proposed development with existing development in the locality. How the proposed development addresses excellence and integration of landscape design. 1. In the proceedings the remaining contention in relation to landscaping was the potential for wind effects in the upper-level communal open spaces. In the First Judgment at [104] I found: "[104] Further, I am satisfied that on merit the communal open spaces proposed will be satisfactory. By reference to the landscape plans in evidence, in particular the cross sections, I am persuaded that the layered planting will ameliorate any adverse wind effects on the upper-level communal open spaces. However, I am further persuaded that if such wind effects are found by the operator to require further amelioration, such barriers or deflection required to achieve such amelioration could be comfortably accommodated within the planter beds or as free-standing structures. I accept Mr Mead's evidence in this regard. In determining the development application, I have considered how the proposed development addresses any environmental impact arising from wind effects and I am satisfied that those impacts do not warrant the refusal of the development application." 1. I remain satisfied that the landscape design of the communal open spaces is supportive of a conclusion that the development exhibits design excellence. 2. In response to the Revision 12 plans, Ms Pressick criticises the landscape design and viability of the Level 17 garden given the retention of the glazed roof and the glazing to the south of the space. The change in amenity arising from the retention of the roof element and glazing to the south is, in essence, the provision of cover to an outdoor space, a reduction in open air and the potential need to adopt planting which is adapted to shade. Having considered her views I am not persuaded that those criticisms are sufficient to conclude that the proposed landscape design of the development as a whole fails to address excellence and integration of landscape design. Other than this change at Level 17, I note that the landscape experts are in agreement that the landscape plans demonstrate an appropriate landscape outcome. 3. When the development is considered as a whole I am satisfied that the proposed development appropriately addresses excellence and integration of landscape design, despite the changes resulting from the retention of the encroaching built elements. Does the proposed development exhibit design excellence? 1. Having wholistically considered the matters at subcl (4) of cl 6.21 of LEP 2012, I am satisfied the proposed development exhibits design excellence satisfying the precondition at subcl (3). 2. Further, as detailed in the First Judgment, the remaining preconditions in the planning instruments are satisfied. At par [2] of this judgment I adopted those findings of satisfaction. These findings were not the subject of the appeal. 3. Finally, after an assessment of the proposed development under s 4.15 of the Environmental Planning and Assessment Act 1979, I am satisfied the development is acceptable on merit. I find that the proposed development warrants approval subject to the annexed conditions. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development application DA/2021/304 for alterations and additions to an existing building, including demolition and construction of an 18-storey boarding house, ground floor retail, podium car parking, two levels of basement with pool, ancillary storage, plant, garbage rooms and bicycle parking at 93-105 Quay Street, Haymarket (Lot 2 DP 408335) is determined by the grant of consent subject to the conditions in Annexure A. 3. All exhibits are returned except for Exhibits 1, C and the final architectural plans filed with the Court on 28 April 2022 which are to be retained. D Dickson Commissioner of the Court Annexure A ********** 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: 25 July 2023