Land and Environment Court of New South Wales CITATION: Ricki Developments Pty Ltd v Sydney City Council [1999] NSWLEC 295 PARTIES APPLICANT Ricki Developments Pty Ltd RESPONDENT Sydney City Council NUMBER: 10303 of 1999 CORAM: Sheahan J KEY ISSUES: Development :- Class 1 appeal - height controls - design features - noise LEGISLATION CITED: Environmental Planning & Assessment Act 1979 Central Sydney Local Environmental Plan and Development Control Plan DATES OF HEARING: 11/29/1999; 11/30/1999 EX TEMPORE JUDGMENT DATE: 11/30/1999 APPLICANT Mr W R Davison SC, Barrister SOLICITORS Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr D Miller, Barrister SOLICITORS Abbott Tout JUDGMENT: IN THE LAND AND Matter No: 10303 of 1999 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 30 November 1999 RICKI DEVELOPMENTS PTY LTD Applicant v SYDNEY CITY COUNCIL Respondent JUDGMENT Introduction 1. This appeal concerns a proposal to demolish the current building and to construct in its place a substantial residential flat building, worth about $20m, at Nos 93-105 Quay Street Ultimo, which will have a restaurant at the ground floor and basement levels, together with carparking and storage units. 2. Located above ground level there will be a podium of 3 levels of residential accommodation facing onto Quay Street with carparking facilities accessed via a ramp. The carparking levels have space for 101 cars, with 3 loading spaces provided at ground level, together with turntable for manoeuvring service vehicles. On that podium, 14 levels of apartments substantially set back from Quay Street and a hotel are proposed. 3. The site is surrounded on three sides by existing buildings. To the south is located Her Majesty's Theatre, immediately to the north is the Theatre's carparking structure, and to the west is a substantial multi-storey hotel, now known as The Carlton Crest, erected on top of a parking station at 169-179 Thomas Street. The foyer and associated functions of the hotel are housed in a heritage building, formerly known as Field House, facing Thomas Street. 4. The Court has had regard to the Central Sydney Local Environmental Plan (" LEP ") and Development Control Plan (" DCP "), both dated 1996, especially to clauses 32(1) and 51(d) of the LEP, and clauses 2.1 and 6.1.3 of the DCP ( Exhibit A7 ). The Issues 5. In refusing this matter the Council referred to a number of issues, but in this appeal the debate has focussed on a significantly restricted range of issues, specified in a Statement of Issues dated 5 October 1999. 6. One of the issues is the height of the proposed building (Issue 1) and height is the subject of an objection under the provisions of State Environmental Planning Policy Number 1 (" SEPP 1 "). 7. The exceedence of height by the proposal, in a locality with a maximum height allowed is 50m, involved some 2.09 or perhaps 2.6m, or approximately one storey. Given the juxtaposition of the proposed building with the Carlton Crest Hotel to the west, approximately 6m higher than the proposal, and given also the building known as " The Peak " nearby, the Court is of the opinion that this exceedence does not constitute a significant issue, particularly having regard to the configuration of the proposed building as a tower set back above the lower level podium. 8. The urban design was criticised by Michael Harrison ( Exhibits A2 and A6 ), as being inconsistent with the surroundings in the Haymarket area. However, based on the elevations contained in the development application and, in particular, the three-dimensional form of the proposal as revealed by other drawings and an inspection of the Council's City Model, the Court finds such a general criticism hard to sustain. 9. The Council raised some specific criticisms of the street level colonnade treatment, but the applicant's Architect, David Wolski, ( Exhibits B4 and B2 ), has now produced amendments (see Exhibit B4 and draft condition 47A). These appear to respond adequately to that criticism and provide an appropriate solution to the public safety and related issues, without jeopardising the appealing design features of the proposal. 10. There was also a general criticism of the form of the tower of residential flats and the employment of a light court on the southern elevation facing towards Her Majesty's Theatre. In this context, Mr Harrison was critical of the planning of the typical floor level units and, in particular, those located on the north, north-west and south-west. These, he contended, suffered from a poor outlook to adjoining buildings and carparks and also an inadequate level of setback. 11. In this context, Mr Harrison's proposals would have achieved a 2.5m improvement on the western frontage as compared with the Architect's proposals. However, if Mr Harrison's proposals were to be accepted, it is clear that this would have the effect of reducing the typical floor area by at least 20%, which would have inevitable economic repercussions, estimated by Mr Wolski to be a gross loss per floor of half a million dollars. 12. More importantly, given the proposed 12.5m setback from the hotel boundary, the Court is not persuaded that sufficient benefit would accrue from taking such a step. 13. Further, despite the inherent deficiencies of a residential solution involving light courts, the Court considers this to be a potentially better solution than one involving a tower block with residential units set with common internal walls. Such a solution, it appears to the Court, would inevitably necessitate the introduction of air-conditioning. By contrast, the development application as proposed provides both for natural ventilation and a degree of natural lighting which would make air-conditioning an option rather than a necessity. 14. In expressing concerns as to the potential noise environment created by the proposed development, especially for lower level units, (see particularly Exhibits A4, A5, B6 and B7 ), the Council pointed to the unacceptable noise features of its surroundings. As Lloyd J observed in Meriton Apartments Pty Ltd v Sydney City Council (10556 of 1999, 16 February 1998) high traffic noise (either vehicular as in that case, or, in this case, theatre patrons) such as requires residents to close themselves in, leads to " a poor level of residential amenity " (see p8 par (2)). 15. However, controlling the noise problem in a residential context is not beyond the skill of the Architect and the adopted form of construction e.g. by way of awnings, balcony design, etc. The notion of substituting commercial uses for residential in the lower storeys of the proposed building would need to be considered only if the noise environment were found to be untreatable. 16. On the basis of the evidence, the Court has concluded that appropriate conditions of consent as to acoustic matters are likely to be complied with. Stricter enforcement of conditions attaching to relevant consents in respect of the hotel site, ( see Exhibit B7 ), may have a beneficial effect, but such are not the province of this Court in this appeal. Conclusions 17. In considering its decision in this appeal the Court has had the benefit of a site inspection, as well as the inspection of the City of Sydney model, and has also had the assistance provided by Senior Commissioner Jensen. 18. Both in terms of its form and urban design, the development as proposed appears to the Court to be consistent with its surroundings. It is well within the allowable floor space ratio of 9 : 1, and the height exceedence of up to 2.6m (approximately 1 storey) over the 50m height control, is considered sustainable, given particularly the bulk and scale of the neighbour to the west. 19. A Planner, Louise Sureda, provided evidence and presented an objection on behalf of the adjoining Her Majesty's Theatre ( Exhibit A3 ). The particular thrust of this submission was that the development would erode the viability and redevelopment potential of the Theatre site. 20. The Court is not persuaded that the redevelopment potential of the Theatre site is likely to be affected in any significant fashion, nor is the Court persuaded that the potential redevelopment of the Theatre will impact unacceptably on the amenity of the units in this proposal. 21. The Court sees what is here proposed as being very much what one would have expected to arise from the Environmental Plan for this part of the Sydney CBD, well placed as it is in regard to educational, recreation and transport facilities. 22. What is achieved in the development application seems to be generally consistent not only with the zoning of the site but also with the objectives of the LEP and DCP, and the Court has concluded that both the appeal itself and the SEPP 1 objection should be allowed. 23. Accordingly, the appeal and the applicant's SEPP 1 objection are upheld, and the development application, D/99/00453, is determined by the grant of consent on the conditions as tendered in Exhibit A8 , subject to the following amendments: 1. The addition of a new condition to be condition 1A as proposed by the applicant entitled " Interpretation 1A: Wherever in this development consent an approval is required to be obtained of the Council, the director city development, the manager city development or the like, that approval may be obtained from an accredited certifier in accordance with section 109(O) Environmental Planning Assessment Act 1979 ." 2. Amendment of condition 7(a) as proposed by the Applicant, the current sub-paragraph (a) being deleted and substituted with the following: " (a) Demolition or excavation must not commence until a bona fide application for a construction certificate which is complete in all respects for the construction of the development has been lodged with Council and (b) a construction certificate has been obtained for demolition and excavation if required." 3. An amendment as to condition 7 by the addition of condition 7(e) subject to variations that may be needed in the numbering. 7(e) to read as follows: "Prior to the issue of a construction certificate the applicant must obtain written confirmation from an independent auditor that the levels of contamination at the site do not preclude use of the land for residential purposes." 4. A further amendment is the deletion from the second line of condition 12, as tendered in Exhibit A8 , of the words " acoustics and noise ". 5. The amendment of conditions 18 and 56 as agreed between the witnesses Cooper and Murray and detailed in the facsimile from Stephen Cooper Acoustics Pty Limited of 29 November 1999, within Exhibit A8 , noting the amendment on page 2 thereof, as endorsed thereon by the Court. 6. There should also be the addition of a new condition 47A as proposed by the applicant as follows: "The facade fronting Quay Street shall be amended in accordance with figure 8 of the statement of evidence of David Wolski subject to the following: (i) The doors to either side of the car park entry shall be turned through 90 degrees; (ii) the door to the north of the main entry shall be turned through 90 degrees." 24. The Court grants leave to the parties to agree upon and file with the Registrar within seven days a final text of the conditions, as so determined by the Court, together with a sketch revising figure 8 from exhibit B4 to reflect condition 47A. 25. All the exhibits excepting exhibit A8 may be returned to the parties. DAVISON: That was the question of approval for demolition, the application was made and in exhibit-- HIS HONOUR: I mentioned that the appeal concerned a proposal to demolish so if you require a formal approval to amend I think it was granted in running as it were, but I am happy to include that if you want to have that engrossed in the orders. FINN: That amendment wasn't opposed your Honour. HIS HONOUR: No, I appreciate that. 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.