Maygood Australia Pty Limited v City of Sydney Council [2007] NSWLEC 157

Land and Environment Court of New South Wales

CITATION : Maygood Australia Pty Limited v City of Sydney Council [2007] NSWLEC 157

APPLICANT: PARTIES : Maygood Australia Pty Limited RESPONDENT: City of Sydney Council

FILE NUMBER(S) : 10965 of 2006

CORAM: Watts C at 1

KEY ISSUES: Deemed Refusal - Development Application :- Height, bulk and scale; Heritage impacts

LEGISLATION CITED: South Sydney Local Environmental Plan 1998, (SSLEP) Environmental Planning and Assessment Act 1979, ss79C and 97

Maygood Australia Pty Limited v City of Sydney Council [2006] NSWLEC 423; CASES CITED: PDP (Darlinghurst Apartments) Pty Limited v City of Sydney Council [2005] NSWLEC 41; Segal & Anor v Waverley Council [2005] NSWCA 310 (15 September 2005)

DATES OF HEARING: 19/02/2007 and 20/02/2007

DATE OF JUDGMENT: 29 March 2007

APPLICANT: Mr P C Tomasetti, barrister, instructed by Mr Y Koo, principal of Maygood Australia Pty Limited SOLICITORS: LEGAL REPRESENTATIVES: N/A RESPONDENT: Mr A E Galasso, SC, instructed by Mr S Kondilios, solicitor SOLICITORS: Maddocks, Lawyers

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

29 March 2007

10965 of 2006 - Maygood Australia Pty Limited v City of Sydney Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by City of Sydney Council (the council) of a development application for alterations and additions to the former telephone exchange to erect a mixed-use building containing retail, commercial and residential uses at Lot 101, DP1051893, being No 320 Liverpool Street, Darlinghurst. 2 I visited the land in company with the parties on the morning of the first day of proceedings and heard from local residents. 3 I have concluded that the application should be refused, as the proposed height of the development in the context of the nearby heritage conservation area would be too great. The land 4 The land is situated on the northern side of Liverpool Street, east of the intersection with Victoria Street. It is of rectangular shape with an area of 1,062m2 and a frontage of 29m to Liverpool Street, to Little Surrey Street (west) of 38m and to Little Surrey Street (north) of 29m. 5 Part of the existing building on the land was erected in 1926 as the City East Telephone Exchange, and is a two-storey inter-war stripped classical style building. An addition was erected on the eastern side of the original building in a similar architectural style in the 1930s. A metal-roofed enclosure, later altered part of the parapet. 6 As part of the investigations for the City of Sydney Local Environmental Plan, the council has recently exhibited a draft list of proposed heritage items, which includes No 320 Liverpool Street. 7 The area is characterised by mainly commercial uses in Victoria Street, residential uses to the east, north and west, and the St Vincent Hospital medical precinct to the south, opposite the land in Liverpool Street. 8 The area is included within Zone 10 Mixed Uses under the South Sydney LEP 1998, and the Conservation Area CA4 - Barcom Avenue Conservation Area. 9 There is a diverse range of uses and built form in the immediate context, ranging from low-scale Victorian terraced houses to the east and north of the land, to the 50m high Telstra utility building, constructed during the 1970s, adjacent to the land on the eastern side. To the west of the land across Little Surrey Street is the 'Camelot' apartments, an eight-storey residential flat building constructed in the 1960s, and a six-storey cement rendered hostel building of circa 1920. To the south of the land, across Liverpool Street, is the Garvan Institute, a ten-storey building approved by the Department of Planning in March 2006, that is presently under construction within the St Vincent medical precinct. 10 The 'Green Park Hotel' is also located close to the land at the intersection of Liverpool and Victoria Streets. Relevant planning controls South Sydney Local Environmental Plan 1998, (SSLEP) 11 Under the provisions of the SSLEP the land is zoned and the proposal is permissible with consent. 12 The telephone exchange on the land at the time of the hearing was not individually heritage listed. The land is located at the western edge of the Barcom Avenue Conservation Area. 13 On 2 January 2007, the City of Sydney Heritage Development Control Plan 2006, (SHDCP2006) repealed the South Sydney (Heritage Conservation) Development Control Plan 1998 (SSHCDCP1998). 14 Other relevant planning instruments are: · State Environmental Planning Policy 55 - Remediation of Land. · State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development. · South Sydney Development Control Plan (Urban Design) 1997, (UDDCP1997). · Sydney City Council Residential Amenity Policy (Part 6 Central Sydney DCP 1996). · South Sydney Development Control Plan No. 11 Transport Guidelines for Development 1996. · City of Sydney Access Development Control Plan 2004. · City of Sydney Contaminated Land Development Control Plan 2004. · City of Sydney Draft Policy for Waste Minimization in New Developments 2005. The proposal and its history 15 Development application No DA 2006/01452 was lodged with the respondent council on 30 August 2006, alterations and additions to the former telephone exchange to erect a mixed-use building containing retail, commercial and residential uses on the land. 16 There have been two appeals to the Land and Environment Court relating to the development of the land. 17 The first, Appeal No. 10755 of 2004 was in relation to Development Application No. DA 2003/01344 was refused by the council and after amendment, was approved by the Court on 10 February 2005, [Note: PDP (Darlinghurst Apartments) Pty Limited v City of Sydney Council [2005] NSWLEC 41]. The approved development was conditioned to be of a maximum height of RL 63.25 (26.4m in height on the Liverpool Street frontage) and a maximum floor space ratio (FSR) of 3.9:1. 18 The second, Appeal No. 11561 of 2005 related to Development Application No. DA 2005/01901 was appealed as a 'deemed refusal' as the council had not determined the application when the appeal was filed. The Court dismissed this appeal on 14 July 2006, [Note: Maygood Australia Pty Limited v City of Sydney Council [2006] NSWLEC 423]. This application related to an eleven-storey proposal to a maximum height of RL 72.76m AHD (34.4m -on the Liverpool Street frontage) with a FSR of 5.61:1. 19 At para 50 of Maygood the commissioners stated: In our opinion, the proposal fails to meet several objectives of LEP 1998 as well as the relevant objectives of the development controls in DCP 1997. The two main reasons for its failure are its excessive floor space ratio and its inadequate setbacks, mainly from the north boundary. The appeal is therefore dismissed. 20 Under the heading The Barcom Avenue Conservation Area at para 42 of Maygood the commissioners stated: We have already found that the height at the Liverpool Street frontage is acceptable. Notwithstanding its location within the conservation area, the proposal's height is compatible and complementary to surrounding buildings existing and proposed. However, we also found that the Liverpool Street façade was inappropriate in relation to the existing building and the streetscape. To that extent the proposal impacts adversely on the conservation area. 21 At para 23 referring to the Telstra building, St Vincent Hospital Gavan Institute opposite the land in Liverpool Street and the Camelot apartments to the west of the land, the commissioners stated: As regards the Liverpool Street frontage, we do not agree that because the scale of the Telstra building is anomalous, it should be disregarded. While it is undoubtedly out of scale with the rest of the street, for better or worse it exists. If the Telstra building and the Camelot apartments were replaced, it is unlikely that their replacement would be smaller. In our opinion, therefore, the height at Liverpool Street of the proposal, being between the Telstra building and the Camelot apartments is acceptable. 22 There is no doubt that these comments contributed to the applicant pursuing the present development that had a similar façade height on Liverpool Street to this former application. I have reached a different conclusion with regard to the height of development on the southern edge of the conservation area. I consider a building of similar height to the Camelot apartments would be a more appropriate height of building in Liverpool Street and would better relate to the low-scale buildings within the conservation area. 23 Segal & Anor v Waverley Council [2005] NSWCA 310 (15 September 2005) is authority that a commissioner must decide each case on its merits in the context of the evidence before him or her. However, this does not mean that the commissioner should disregard the decision in the earlier case and ideally should distinguish each decision made by the Court. Notification 24 From 19 September to 18 October 2006, the present application was notified to nearby owners and occupants under the provisions of the City of Sydney Notification of Planning and Development Applications Development Control Plan 2005, and the council received thirty-one (31) public submissions opposed to the proposal. The council's decision 25 When the Class 1 application was filed with the Court, the council had not determined the matter. The hearing 26 The appeal was filed on 12 October 2006 and is against a deemed refusal. 27 At the hearing the court heard evidence on behalf of the respondent council from: · Ms K Lithgow, Senior planner of Sydney City Council; · Mr J Poulton - Heritage Specialist, Sydney City Council; · Mr N Diamondes, No 7/93 Womerah Avenue, Darlinghurst; · Mr M McCarthy, No 8 Little Surrey Street, Darlinghurst; · Ms J Barnett, No 2/96 Surrey Street, Darlinghurst; · Mr N Thompson, No 29 Little West Street, Darlinghurst; · Ms E (Betty) Robertson, Savoy apartments, Darlinghurst; and · Mr T Dugan, No 180 Surrey Street, Darlinghurst.