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. 28 On behalf of the applicant evidence was given by: · Mr B Newbold, Urban planner; and · Mr G Brooks - Heritage Consultant. 29 Ms K Lithgow, prepared the statement of basic facts dated 23 November 2006. The issues 30 On the council filed a statement of issues. 1. The proposed additions represent over-development of the site and results in adverse impact upon the streetscape, character of the area, and upon the appearance and integrity of the existing building. Particulars (a) The height of the proposed development, at 33.9 metres, does not comply with the 18-metre height control (Refer: Part E Section 2 of the South Sydney Urban Design Development Control Plan 1997). (b) The proposed floor space ratio, at 5.12:1, does not comply with the 2:1 FSR control (Refer: Part E Section 2.2 of the South Sydney Urban Design Development Control Plan 1997). (c) The proposed setbacks to the west (Little Surrey Street) and south (Liverpool Street) are insufficient (Refer: Part E Sections 2.3 and 2.4 and Part F Section 2.2.2 of the South Sydney Urban Design Development Control Plan 1997). 2. The proposed, development adversely impacts upon the heritage significance of the existing building. Particulars (a) Due to the lack of sufficient setbacks, particularly upon the southern and western elevations, the bulk of the proposed addition will overwhelm the existing building upon the site (Refer Section 4.1.3 of the South Sydney (Heritage Conservation) Development Control Plan 1998). (b) The proposed alterations to the facades of the existing building will have an adverse impact upon the character and significance of the building, particularly with regard to the removal of the hoist and doors, and alterations to the existing windows (Refer Clause 22(e) and (f) of the South Sydney LEP1998 and Sections 4.1.3 and 4.1.4 of the South Sydney (Heritage Conservation) Development Control Plan 1998). 3. The application lacks sufficient information essential to the assessment of the proposed development. Particulars (a) A Site Audit Statement certifying that the land is suitable to accommodate the intended proposal, as required by SEPP55 Clause 7. (b) A 3D CAD model to specifications as required within the City of Sydney's document 'Specification for 3D CAD Model Submission' of July 2006. 31 The heritage impact of the proposal was the salient issue. Height and bulk were related issues. The evidence and findings Evidence of nearby residents 32 The subject land was viewed by the Court in company with the parties from the streets around the proposal, from the unit of Ms Barnett and the rear of the terraced house of Mr Dugan. During the site inspection various residents gave evidence that may be summarised below. 33 Mr Diamondes, was concerned for the bulk of the proposal. 34 Mr McCarthy, stated that the: · building would be too large; · 2-year construction period is a concern; · there is possibly an underground stream passing through the land; and · the vehicle manoeuvring in the narrow streets around the proposal would be difficult. 35 Ms Barnett, stated that there is a vast amount of building under construction in the area and as a result there is likely to be a very large number of vehicles in the streets leading to congestion and in addition the proposal would result in an adverse; · impact on amenity of the neighbourhood; · loss of privacy for her unit; and · loss of sky view and light from the rear balcony of her dwelling. 36 Mr Thompson, had written three letters of objection and did not wish to add anything to his previous comments. His concerns were summarised in Exhibit 2 at p 14 as being: · exceedance of height and FSR controls; · aesthetically inappropriate; · Telstra tower and Camelot motel are earlier bad planning decisions and should not be used as a reference; · compromise the amenity of local residents; and · possible structural damage to nearby terraces from excavations. 37 Ms Robertson: adopted the evidence of Mr Barnett and stressed the difficulties with parking in the streets and for visitor parking in particular. Customers to the retail are likely to take up spaces on street she said. 38 Mr Dugan stated that: · the building still too large; · the elevation at the rear is too stark; · despite there being presently no overviewing from the Telstra building into his yard at the rear of his terrace, the proposed apartment building with its many windows would impact in a significant way; · scaling off the Telstra building is not appropriate; · the applicant needs to comply with the controls of FSR and height; · it is a better development than that previously refused by the Court but it is still too big; · the residents to the south on Surrey Street are concerned that the building will have people living in elevated spaces and there should be only three (3) floors overlooking the rear of the Surrey Street terraces rather than six (6) as proposed; · the Telstra building is not appropriate for cues to be taken in relation to height; · from the rear of his dwelling: a three floor reduction in height would be preferred; · a five (5) floor reduction would take it to the top of Garvan Institute [Note: Exhibit G north/south sight line section]. 39 The parties agreed that from the top of the Caldwell Stairs within the heritage conservation area there is an adverse heritage impact and a four (4) floor reduction in height would equal the ridge of the terrace and the Garvan building would be seen over the top of the proposal; 40 From a viewpoint on the southwestern corner of Liverpool/Victoria Streets, with four (4) levels removed the top of proposal would in perspective coincide with the power lines, and would relate to the height of the heritage listed hotel on the southeastern corner. Heritage 41 The heritage experts agreed that the former Telephone Exchange building on the subject land makes a contribution to the character of the Barcom Avenue Conservation Area. They agreed that it presents as a relatively isolated example of an early 20th Century industrial/institutional building on the edge of the more dominant 19th Century residential character of the conservation area. 42 The heritage experts also agreed that the former telephone exchange no longer contains any internal equipment of heritage significance, relating to its original function. The experts also agreed that two of the internal concrete floors of the existing building, including the old roof slab would be largely retained as part of the adaptive re-use of the building. Accordingly, the subject proposal for the adaptive re-use and redevelopment should be assessed primarily on the potential impact on the façades and overall external imagery of the building and its contribution to the conservation area. 43 The heritage experts agreed that Victoria Street is a listed heritage streetscape in the South Sydney LEP 1998 and that the proposal would have no adverse impact on that Victoria Street heritage streetscape. 44 The heritage experts agreed that there are a number of modern high-rise buildings visible from within the conservation area, most notably to the north. In this context however, the experts agree that the 1970s Telstra building is not the only high-rise building within the Barcom Avenue Conservation Area, and that it is a detracting element within the conservation area. 45 The decision of his Honour Talbot J in PDP Darlinghurst permitted the 1930s second stage of the former telephone exchange to be demolished. It also authorised extensive alteration of the interior and to the remnant façade and permitted the construction of a four-storey new residential component above the retained telephone exchange. 46 The heritage experts agreed that a vertical extension of the former telephone exchange, as part of it's adaptive re-use, would be possible, subject to its potential impact on the conservation area, and on the building itself. 47 The heritage experts agreed that the present amended proposal for vehicle entry directly from Liverpool Street is an improvement on the earlier proposal that located the basement car park entry off Little Surrey Street through the northern elevation. 48 The point of disagreement between the heritage experts is in regard to the alterations and additions to the former telephone exchange and their potential impact on the significance of the existing building and its contribution to the Conservation Area. 49 Mr Poulton considered, [Note: Exhibit 9, pp 3 and 4]: …the combination of the scale, massing and height of the addition, and the use of external concrete framing and walling, will overscale the existing building and give it the appearance of being top heavy. In addition, the minimal setbacks from the southern and western frontages, will accentuate the impact of the addition on the existing building. These factors in his opinion will make it difficult for the existing building to be adequately read and understood in its own right. …as the proposed additions adversely impact on the existing contributory building they in turn impact on the significance of the Conservation Area. He also notes that the height of the addition coupled with the limited setbacks from the Liverpool Street frontage and from the eastern side of Little Surrey Street, will increase the potential for a dominant street wall effect, which is not in keeping with the scale and character of the streetscapes within the Conservation Area. 50 Mr Brooks noted the current proposal, [Note: Exhibit 9, pp 3 and 4] …has adopted a more visually lighter architectural language, with more extensive use of glass and a considerable reduction in the use of concrete external walling when compared with the previous application. He also notes that the architectural arrangement of the upper section, particularly the Liverpool Street elevation now closely takes its primary references from the rhythm and layout of the main elevations of the Telephone Exchange. It now achieves a greater contextual unity with the established architectural language of the former Telephone Exchange. …is relatively isolated from the bulk of the sensitive streetscapes within that area. He disagrees that the proposed additions will have such a degree of impact on the contributory building that there is a consequent adverse impact on the Conservation Area as a whole. 51 The heritage experts recommended conditions in the event the Court favourably considered the proposal. 52 From the rear balcony of Ms Barnett's dwelling at No 2/96 Surrey Street the loss of sky view and light would be significant were the proposal to be erected to the height sought. As a result the proposal would adversely affect the outlook from that and other dwellings and would adversely impact on the Barcom Avenue Conservation Area. In this regard I accept much of the evidence of Mr Poulton. 53 From the rear of Mr Dugan's terraced house at No 180 Surrey Street, I concluded that the proposal would adversely impact on the view to the south and adversely impact on the ambiance of the conservation area. I found the evidence of the residents compelling in this regard. 54 Standing on the top of the Caldwell Stairs I considered the view to the south would be adversely affected were the proposal erected to the height sought and should to be reduced in height. I accept the evidence of Mr Poulton that the proposal would adversely impact on the significance of the Barcom Avenue Conservation Area. 55 I am satisfied that the proposal would better relate to the controls of the SHDCP2006 if it were reduced in height. Height and bulk 56 The proposed floor space ratio, (FSR) of 5.12:1 would not comply with the 2:1 FSR control in Part E, Section 2.2 of the South Sydney Urban Design Development Control Plan 1997, (UDDCP1997). 57 The 33.9-metre height of the proposal would not comply with the 18-metre height control in Part E, Section 2 of the UDDCP1997. 58 During the course of the hearing the height of the proposal was considered in detail in the context of the Barcom Avenue Conservation Area, the Telstra building, St Vincent Hospital Gavan Institute and the Camelot apartments and diagrams were prepared showing the relationship of development to nearby buildings. These came to Court as Exhibits G and H. The first was a sectional sight line in a north/south direction and the latter was the Liverpool streetscape height comparison. Having carefully considered the height, heard and seen the evidence I am convinced that the proposal would be too high and should fail. 59 I am satisfied that if the proposal were reduced in height by four floors it would better relate to the controls of the UDDCP1997 and would more closely relate to the height of the Camelot apartments and taking into account of the topography of the land and the slope of Liverpool Street down to the east the ultimate height of the proposal might be slightly less than that of the nearby apartments to the west. 60 If the proposal were reduced by this amount it would be similar in height to the approved development in PDP Darlinghurst, and would better relate to the buildings within the conservation area and to the 'Green Park Hotel' on the southeastern corner of the intersection of Liverpool and Victoria Streets. 61 The council also maintained that the proposed western setbacks of the proposal to Little Surrey Street and the southern Liverpool Street setbacks are insufficient when considered in the light of Part E, Sections 2.3 and 2.4 and Part F Section 2.2.2 of the UDDCP1997. 62 I consider that were the proposal reduced in height as described above the proposed setback on the western side would be acceptable. However, to the south I consider the residential part of the proposal should be setback further to better relate to the Telstra building. 63 For the above reasons, the appeal is dismissed. Orders 64 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed. 2. Development application No DA 2006/01452 lodged with the respondent council on 30 August 2006, 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, is refused consent. 3. The exhibits except for Exhibits G, H, J and 1 are returned. S J Watts Commissioner of the Court sw 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.