Land and Environment Court of New South Wales CITATION: David Elphick & Associates Pty Ltd v Sydney City Council [1999] NSWLEC 117 PARTIES APPLICANT David Elphick & Associates Pty Ltd RESPONDENT Sydney City Council NUMBER: 10806 of 1998 CORAM: Pearlman J KEY ISSUES: Development :- conservation area - height and bulk - adjacent heritage items - streetscape Sydney Regional Environment PLan No 26 - City West LEGISLATION CITED: Urban Development Plan 1995 Draft Sydney Regional Environment PLan No 26 - City West (Amendment 8) DATES OF HEARING: 03/24/1999; 03/25/1999; 03/26/1999 DATE OF JUDGMENT DELIVERY: 05/24/1999 APPLICANT Mr N A Hemmings (Solicitor) SOLICITORS Allen Allen & Hemsley LEGAL REPRESENTATIVES: RESPONDENT Mr A E Galasso (Barrister) SOLICITORS Dunhill Madden Butler JUDGMENT: Contents Section Paragraph Number Introduction 1 to 3 The site and surrounds 4 to 7 The proposal 8 to 12 Relevant statutory instruments 13 to 30 The evidence 31 to 32 Issues 33 Relationship with the Pyrmont Conservation Area 34 to 45 Relationship with adjacent heritage items 46 to 50 Pyrmont Street streetscape 51 to 56 Other matters 57 Carpark layout 58 to 59 Compliance with the Building Code of Australia (BCA) 60 to 63 Disabled access 64 to 65 Public submissions 66 to 67 Orders 68 IN THE LAND AND 10806 of 1998 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 24 May 1999 DAVID ELPHICK & ASSOCIATES PTY LTD Applicant v SYDNEY CITY COUNCL Respondent JUDGMENT Introduction 1. In these proceedings, the applicant, David Elphick & Associates Pty Ltd, appeals against the refusal of Sydney City Council to grant development consent for the demolition of an existing warehouse and office building and the construction of a nine-storey mixed retail, office and residential building at No 13A - 29 Union Street, Pyrmont ("the site"). 2. I record that I had the assistance of Commissioner Bly at the hearing and that the Court had the benefit of a site inspection. 3. I have concluded that the development consent should be refused upon the ground that the proposed development fails to observe the statutory requirements relating to its relationship with the Pyrmont Conservation Area. The site and surrounds 4. The site which is proposed for development is irregular in shape and occupies a significant proportion of the roughly triangular block of land bounded by Union, Edward, Pyrmont Bridge and Pyrmont Streets in Pyrmont. It is presently occupied by a two-storey warehouse and office building. 5. Adjoining the site to the east, at the south-western corner of Edward and Union Streets, are two two-storey terrace houses. Adjoining these terrace houses at the corner of Edward and Union Streets is the two-storey corner shop known as "Charmelu". 6. Immediately to the south of the site is a three-storey commercial building and adjoining this building is a service station at No 104 Pyrmont Street. 7. To the west and opposite the site in Pyrmont Street is a two-storey restaurant and a row of two-storey terrace houses which are mainly used for commercial purposes. There is a three-storey commercial building to the south-west of the site on the corner of Pyrmont Bridge Road and Pyrmont Street. The proposal 8. The existing building on the site apparently has no special qualities and its demolition is unopposed. 9. The proposed new building is to comprise two basements, a two and three level podium with a seven level tower above. The basement is to have access off Edward Street and is to contain 88 carparking spaces, loading and other service facilities. Because of the slope of the site, the lower level of the podium will coincide with the uppermost basement. It will contain retail floor space with frontage to Union Street and a lobby for the offices at the two levels above. 10. Fronting Pyrmont Street and within the podium are to be five two-storey terrace style dwellings with direct street access. Fronting Union Street there are to be two levels of office space above the retail floor space. The remainder of the podium is occupied by two lobbies, stairs, lifts and apartments. 11. The tower is to be elongated along an approximately north-south axis, presenting its longest dimension of about 60 m towards Pyrmont Street. It is to be set back 4 m from this frontage for five levels. The uppermost two levels are to be stepped back further distances of about 700 mm and 1400 mm. The northern elevation of the tower is irregular in plan form with setbacks of 4 m to 12 m from Union Street. 12. The tower is to be fully occupied by apartments including two roof top penthouses with relatively large terraces. Relevant statutory instruments Sydney Regional Environment Plan No 26 - City West (SREP 26) 13. The site is situated in the Residential - Business Zone under SREP 26 and it is situated in the Ultimo-Pyrmont Precinct created by SREP 26. 14. Clause 13 of SREP 26 requires that all development that is permissible within a precinct, including the demolition of buildings, requires development consent. 15. Clause 18 of SREP 26 provides that only those uses which the consent authority is satisfied are generally consistent with one or more zone objectives are permissible in the Residential - Business Zone. In particular, cl 18 provides: Consent is to be granted to development within this zone only if the consent authority is satisfied that carrying out the proposed development will be consistent with the planning principles for the relevant precinct and for City West, particularly residential provision and amenity. 16. Clause 15 of SREP 26 refers to the planning principles relevant to a precinct as follows: 15 Before granting consent to a development application relating to land within a Precinct, the consent authority must take into consideration the aim of this plan that development within the Precinct should be consistent with the planning principles set out for the Precinct in the Table to this clause. 17. Clause 24 of SREP 26 contains a similar provision: 24 Before granting consent to the erection of a building, the consent authority must be satisfied that the building will be consistent with the urban design planning principles for the Precinct in which it will be situated set out in the Table to clause 15. 18. The Table referred to contains, inter alia, the following relevant planning principles: Urban Design Building heights are to reflect and emphasise the topography of the Precinct by increasing in height as distance increases from the nearest waterfront. Building heights should allow a reasonable sharing of distant views from buildings by their occupants. The heights and scale of buildings are to form a transition between the high-rise buildings in the city and low-rise buildings in the suburbs adjoining the Precinct. The heights and scale of new buildings are to respect existing buildings in the locality, particularly heritage items and buildings in conservation areas. The heights and form of buildings are to take account of visual impact, solar access, wind impact and, where appropriate, the privacy of residences, in order to contribute to a high quality of environmental amenity in intensively used parts of the public domain and in residential areas. Buildings fronting the public domain should have appropriate height, bulk, finish and street alignment so as to enhance its quality by respecting its character. In general the scale of street facades must respect the width of adjoining streets or lanes, adjoining heritage items or other contextual elements. … Higher buildings may be accommodated: … _ if they will not compromise the environmental amenity and general scale of development in their locality. 19. Clause 23 of SREP 26 deals with maximum building heights as follows: 23 The height of any building must not exceed the building height limits shown on Map 3. The consent authority may only grant consent to a building that achieves the maximum building height if the building also satisfies the design issues identified in clauses 24, 25, 26 and 26A. 20. Map 3 shows the site to be subject to a 28 m height limit. Map 3 also depicts a hatched area along the Pyrmont Street frontage which indicates "Possible Height Restrictions" . Clause 26 of SREP 26 deals with the hatched area as follows: 26 The heights of buildings on land shown hatched on Map 3 must reduce in accordance with their proximity to the adjacent area having a building height limit of 9 m so as to provide a transition between the heights of buildings outside that area and the heights of buildings within that area. 21. Clause 26A of SREP 26 relates to the scale and alignment of building facades and provides as follows: 26A Before granting consent to the erection of a building, the consent authority must be satisfied that the scale and alignment of the building facades on the street boundary or boundaries respects the width of the street, adjoining heritage items or other contextual elements, as may be defined in an urban development plan prepared and adopted under Division 7 of this plan, or defined in a Master Plan prepared and adopted under Division 8 of this plan. 22. Clause 27 of SREP 26 relevantly sets a maximum floor space ratio of 2.5:1 for business floor space. There are no floor space limits for residential development. 23. Clause 34 of SREP requires a consent authority to take into consideration any applicable urban development plan. 24. The principal objective of the Urban Development Plan for the Ultimo-Pyrmont Precinct (1995 update)("the UDP 1995") provides as follows: to ensure that detailed planning and urban design principles and controls reflect and complement the principles and controls in the REP to assist in achieving a built environment of a high standard in the precinct. 25. Section 3 of the UDP 1995 contains controls which deal with built form and which seek to "ensure that the public realm is not dominated and overshadowed by buildings of excessive scale …" . Street wall height controls allow for varying heights depending on the width of the street. Stepped designs are also permissible. 26. At the date of hearing, the draft Sydney Regional Environmental Plan No 26 - City West (Amendment No. 8) - 1998 update ("the draft SREP") had been exhibited but not then adopted. 27. Relevantly, the draft SREP introduces changes to height and floor space ratio controls. Clause 27 of SREP 26 is to be omitted and replaced with new clauses including cl 27A which will introduce a formula for calculating the maximum allowable floor space ratio for mixed use buildings. This formula takes into account the relevant height limits and the proposed proportions of residential and commercial uses. 28. A new cl 26 is to be adopted as follows: 26 Buildings adjacent to a heritage item or a conservation area must be of such a height as to provide a transition that will achieve an appropriate scale between the buildings and either the heritage item or the buildings within the conservation area. 29. There is no reference in the new cl 26 to the hatched areas on Map 3, these having been excluded from the revised Map 3 in the draft SREP. Instead, so far as concerns the site, a strip of land along the Pyrmont Street frontage is shown as having a 15 m height limit. 30. The draft UDP 1995 contains street wall height controls which are very much the same as those contained in the UDP 1995. The Evidence 31. On behalf of the respondent, evidence was provided by Mr M D Soo, council's town planner; Mr A K Cadogan, urban designer; Mr A Nayyar, council's traffic engineer; and Mr R Willis, council's senior building surveyor. 32. On behalf of the applicant, evidence was provided by Mr K J Maher, architect and the design director of the project; Mr R C Brading, architect and heritage consultant; Mr L W Tropman, architect and heritage consultant; Mr A D Darroch, town planner; Mr J M McInerney, town planner; Mr R H Lacey, engineer; Mr B Bennett, health and building surveyor; and Mr P M Twiney, traffic engineer. Issues 33. The council nominated 11 separate issues in the statement of issues which it filed. In essence, however, those issues appropriately condense into three principal issues as follows: (a) the relationship of the proposed development with the Pyrmont Conservation Area; (b) the relationship of the proposed development with adjacent heritage buildings; (c) the effect of the proposed development on the Pyrmont Street streetscape. I deal with each in turn. Relationship with the Pyrmont Conservation Area 34. This issue is the most critical issue in this case, because, in my judgment, the proposed development fails to pay adequate regard to the Pyrmont Conservation Area, and in particular, fails to provide a satisfactory transition with that area. Accordingly, the proposed development fails on this issue, and the development application should be refused. 35. The necessity to consider the Pyrmont Conservation Area arises in this way. The site is immediately opposite the Pyrmont Conservation Area, that is, it is located on the western side of Pyrmont Street, the eastern side of which is one of the boundaries of the Pyrmont Conservation Area. The Pyrmont Conservation Area is of particular heritage significance, noted as such in various heritage inventories, as Mr Cadogan and Mr Tropman both pointed out in their evidence. In that context, the relevant planning instruments require a transition between the proposed development and the Pyrmont Conservation Area. The relevant planning requirements are threefold. 36. First, cl 15 and cl 24 of SREP 26 require consistency with the urban design principles which are set out in Table 15. Under the heading of "Urban Design", Table 15 provides that "[T]he heights and scale of new buildings are to respect existing buildings in the locality, particularly … buildings in conservation areas." 37. Secondly, cl 23 of SREP 26, by reference to Map 3, imposes a building height limit of 28m on the site. That standard is, however, subject to an important qualification, which relates to an area along the Pyrmont Street frontage, which is hatched on Map 3 and indicated as "Possible Height Restriction" . In relation to the hatched area, cl 26 of SREP 26 provides that the height of buildings "…must reduce in accordance with their proximity to the adjacent area having a building height limit of 9 m so as to provide a transition between the heights of buildings outside that area and the heights of buildings within that area". 38. Thirdly, the draft SREP introduces changes to height controls. If adopted, it will replace cl 26 of SREP 26 with the following clause: 26 Buildings adjacent to a heritage item or a conservation area must be of such a height as to provide a transition that will achieve an appropriate scale between the buildings and either the heritage item or the buildings within the conservation area. 39. As I have earlier pointed out, there is no reference in this new cl 26 to the hatched area on Map 3. Instead, so far as concerns the site, a strip of land (of unspecified width, but in the council's opinion, about 19m wide) along the Pyrmont Street frontage is shown as having a 15m height limit. 40. Mr Maher explained in his evidence how the applicant has endeavoured to meet these planning principles. He stated that the street wall alignment will be two storeys high, thereby matching the scale of the terrace houses opposite in Pyrmont Street, and reinforcing that matching with street front access, first floor balconies and a continuous parapet. Above the street wall, the building is proposed to be set back 4m, with a pergola structure at level 8, and a further setback at the penthouse level. 41. Mr Brading supported this design as satisfying the planning requirements, that is, the requirements are achieved by the stepping of the building, the placing of the bulk of the building in the centre of the site, and by the use of modulated rhythms and appropriate details and finishes in the street facades. 42. Similar supporting evidence was given by Mr Tropman, who emphasised that achieving the planning requirements by these design details was reinforced by the 20 m width of Pyrmont Street. 43. However, Mr Cadogan's evidence was that the proposed development will not satisfy the planning requirements, and will have "significant adverse impacts" upon the Pyrmont Conservation Area. In his opinion: (a) the 4m set back of the tower of the proposed building is small and the bulk of the building will be at the maximum permissible height; (b) a further consequence of the design is that the transition between the Conservation Area and the proposed development is "extreme and sudden", and the building will overwhelm Pyrmont Street; (c) the impact of excessive height will be worsened by the length of the tower which will present as a continuous 60 m long wall with only a small degree of modulation. 44. Mr Cadogan noted in his statement of evidence the significant visual impact of the proposed building upon the Conservation Area, particularly from Paternoster Street and Union Street. He also considered the form of the proposed building, that is, a podium base and a tower above, as being "disharmonious" in an area which he noted as being characterised by small residential dwellings and simple industrial/warehouse buildings, low-rise near the ridges and larger at the waterline. 45. I have carefully considered the elements of design which are said by the applicant's expert witnesses to support the transitional nature of the proposed development in its relationship with the Pyrmont Conservation Area. The fact, however, remains that, when viewed from the opposite side of Pyrmont Street (that is, from where the Pyrmont Conservation Area commences), the proposed development will present as a 28m tall building with a 60m wide tower above a podium which extends across the full width of the site. The proposed building will be an excessively large building standing on the edge of the Pyrmont Conservation Area. I do not accept that the proposed development will result in an effective transition with the Pyrmont Conservation Area. I am persuaded by Mr Cadogan's evidence in this respect, which is encapsulated by the following opinion which he set out in his statement of evidence: The proposed development is generally of an acceptable architectural standard and it responds reasonably well to many of the urban design principles of SREP26-1995 and UPD-1995. Notwithstanding, it has in my opinion one crucial failing in urban design & heritage items. This failing is its excessive height (and thus its bulk and scale) in the context of the adjacent Pyrmont Conservation Area. The impact of this failing is so great as to compromise the proposal as a whole. Relationship with adjacent heritage items 46. This is a particular consideration in terms of cl 26A of SREP 26, which requires the consent authority (and the Court on appeal) to be satisfied "… that the scale and alignment of the building facades on the street boundary or street boundaries respects … adjoining heritage items …" . 47. It is the applicant's contention that the proposed development has been designed to respect the adjacent heritage items. 48. Mr Cadogan addressed the relationship of the proposed development to the heritage items at No 31 - 33 Union Street and "Charmelu" (35 Union Street) and found this to be acceptable. He noted that the setting of these heritage items has been modified over time and as a consequence could accommodate a higher degree of intervention. It was nevertheless his opinion that, in the context of providing an appropriate setting for the heritage items, a reduced height would definitely be an improvement. 49. Mr Tropman also considered No 31 - 33 Union Street and "Charmelu" as well as the hotel at No 50 Union Street and concluded that there was a satisfactory relationship between these and the proposed development. In his opinion, this will be achieved by use of a podium height similar to that of the heritage items and by using sympathetic proportions and materials. 50. Taking the evidence of these two experts into account, I am satisfied that the impact of the proposal on the nearby heritage items would be acceptable and in this context the requirements of cl 26A of SREP 26 have been met. Pyrmont Street Streetscape 51. In terms of the Pyrmont Street streetscape, some concerns were expressed in relation to the appearance of the proposal in its setting especially when viewed from south of Pyrmont Bridge Road. 52. Mr Soo was of the opinion that the proposed building was too tall, being taller than the proposed building at No 104 Pyrmont Street which is the subject of a development consent granted by the Court on appeal ( Hooshmand and Anor v Sydney City Council , Lloyd J, 20 August 1998, unreported). He considered that the proposed building would detract from the approved building which assists in defining the corner of Pyrmont Street, Pyrmont Bridge Road and Edward Street. 53. Mr Cadogan agreed, noting the design principle in UDP 1995 which states that corner sites at major intersections have an important streetscape function. Mr Cadogan thought that the proposed building would work against the strong corner form which will be established by the approved building at No 104 Pyrmont Street. 54. In terms of how the proposal will be seen when viewed from the south, Mr Maher thought that the approved building at No 104 Pyrmont Street would remain dominant because of the setbacks incorporated in the design. Moreover the Casino buildings in the background would still appear taller than the proposed building. Mr Brading agreed. 55. In this regard I think that Messrs Brading and Maher are correct. The distant view to the north along the eastern side of Pyrmont Street is significantly affected by the Casino buildings. If both No 104 Pyrmont Street and the proposed building were to be built, the Casino would still appear above and behind them. I also accept that the approved building at No 104 Pyrmont Street will be a dominant building when viewed from close by and within the Pyrmont Street and Pyrmont Bridge Road intersection. 56. As a consequence I do not accept that the impact of the proposed building on the streetscape would be sufficiently adverse so as to warrant refusal of the development application. I do note however that if the upper level setbacks from Pyrmont Street as advocated by Mr Cadogan were to be complied with then the proposed building would be largely hidden by the approved building at No 104 Pyrmont Street. Other matters 57. A number of other matters were the subject of evidence, and I set them out below. I have taken all of them into account, but none of them, in my opinion, warrant refusal of the development application. Carpark layout 58. Mr Nayyar had a number of concerns in relation to the design of the basement car parking areas. These include the dimensions of some of the car space, the number and size of the service areas, and the access arrangement. 59. Contrary evidence was given by Mr Twiney. He was of the opinion that all of these matters were satisfactory, and that the proposed development would comply with the relevant Australian standards (AS2890.1 and AS2890.2). Compliance with the Building Code of Australia (BCA) 60. A statement of evidence of Mr R S Willis, building surveyor, was tendered on behalf of the council, but Mr Willis was not called to give oral evidence. 61. His opinion was that, in a number of respects, the proposed building will not comply with the BCA. To a large extent, his opinion was based on his calculation that the height of the proposed building, in terms of the BCA definitions, will exceed 25 metres. 62. In response, the applicant tendered a letter from Mr R H Lacey, an engineer, in which Mr Lacey proffered his opinion that the proposed building will be 22.8 metres, and, as a consequence, Mr Willis' opinion as to non-compliance with the BCA should not be accepted. 63. This issue does not require resolution at this stage, which is concerned only with the question of whether or not development approval should be granted. I accept what was said in the statement of evidence of Mr B Bennett, a building approvals manager, which was tendered on behalf of the applicant. Mr Bennett addressed fire egress matters in the context of the BCA, and expressed the opinion that matters of detailed compliance can be satisfactorily resolved at the building approval or construction certificate stage. Disabled access 64. Mr Soo was concerned that there were a number of problems with the design of the proposed development in relation to access for people with a mobility impairment. These concerns related to the lack of an access ramp in the northern lobby and the provision of steps between the southern lobby and the internal courtyard. 65. I am satisfied that these matters would not justify refusal of the development application, but could be satisfactorily resolved at a later stage in the approval process. Public submissions 66. As a result of the public notification of the development application, submissions were received from T M Jeffrey and S K Milliken of No 119 Pyrmont Street and from Design Collaborative on behalf of the Dianne Hoogstrate Family Trust, the owner of No 31 - 35 Union Street. The concerns raised in these submissions essentially relate to the height of the proposed building and its relationship to the terraces in Pyrmont Street and to the adjoining heritage buildings. These concerns have been addressed in dealing with the issues earlier in the judgment. 67. A third submission was received from the Department of Urban Affairs and Planning indicating that while the proposed building contained a good mix of retail office and residential uses, there were concerns about disabled access, development of the property in Pyrmont Street between the site and No 104 Pyrmont Street, the need for awnings in Union Street, and non-compliance with height and floor space ratio requirements in the draft SREP. Orders 68. For the foregoing reasons, the consent to development application should not be granted. My formal orders are as follows: (1) The appeal is dismissed. (2) Development application for a mixed retail, office and residential building at No 13A - 29 Union Street, Pyrmont is determined by the refusal of consent. (3) The exhibits may be returned except Exhibit 9. 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.