Nuova Surry Hills v Sydney City Council [2004] NSWLEC 292

Land and Environment Court of New South Wales

CITATION : Nuova Surry Hills v Sydney City Council [2004] NSWLEC 292 APPLICANT Nuova Surry Hills PARTIES : RESPONDENT Sydney City Council FILE NUMBER(S) : 11316 of 2003 CORAM: Talbot J KEY ISSUES: Development Application :- non-compliance with numerical controls - unacceptable levels of amenity State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development LEGISLATION CITED: South Sydney Development Control Plan Residential Amenity Policy CASES CITED: DATES OF HEARING: 07/06/2004, 08/06/2004 DATE OF JUDGMENT: 06/08/2004

APPLICANT Mr C McEwen (Barrister) SOLICITORS Staunton Beattie LEGAL REPRESENTATIVES: RESPONDENT Mr J Robson (Barrister) SOLICITORS Abbott Tout

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11316 of 2003

Talbot J

8 June 2004 Nuova Surry Hills Pty Limited Applicant v Sydney City Council Respondent Judgment

Introduction 1 This is an appeal by reason of a deemed refusal of a development application lodged with Sydney City Council ("the council") on 5 August 2003. 2 The proposal for development is alterations and additions to the existing Cambridge Park Inn at 212-218 Riley Street, Sydney, including internal replanning, the addition of one extra storey and lateral extension onto the adjoining vacant property at 220-222 Riley Street to provide 115 apartments with a mix of 54 one-bedroom or studio apartments, 58 two-bedroom apartments and 3 three-bedroom apartments on a consolidated site. 3 The land is within an area previously in South Sydney in zone 10, which is a Mixed-Use Zone. There is no issue that the proposal is permissible as a consequence of the retail uses proposed along the Riley Street frontage of the ground floor. 4 Stated compendiously, the issues are that the proposal for the residential accommodation either does not comply with the numerical controls of South Sydney Development Control Plan ("DCP"), the council's Residential Amenity Policy (Part 6 Central Sydney DCP 1996) or the Residential Flat Code pursuant to State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Development ("SEPP 65") in relation to residential flat buildings or provide adequate amenity in a broad sense. The greater non-compliance is in respect of the Sydney City controls which are applied by a resolution of the council following the transfer of parts of the former South Sydney area to the City of Sydney in 2003. Although the controls in the planning instruments are indicative of acceptable amenity the council concedes that achieving a satisfactory level of amenity is not dependant upon strict compliance with the controls. 5 The council's claim is that the non-compliance generally results in unacceptable levels of amenity, particularly as a consequence of the low floor to ceiling height in the existing building which is to continue across to the new building. In particular, and in addition to floor to ceiling height, it is contended the development includes unit and private open space areas that are undersize. Inadequate separation of balconies from adjoining buildings and possible limitation of development of an adjoining site also remain as issues. There are a number of peripheral issues raised which in themselves are not determinative and are largely subsumed in the general issues described above. 6 The primary plank of the council's case is that the reduced amenity for permanent residents as a consequence of the inadequate non-complying floor to ceiling height throughout the two sites is not compensated by a balancing improvement of amenity in other respects, such as more generous floor space and increased balcony size. The applicant concedes that the number of units achieved by the proposed design will result in the provision of a greater number of units than that which can be achieved if the council's demands are satisfied, notwithstanding that the proposed yield is less than the yield of 121 that can be achieved by implementing two (already granted) deferred commencement development consents for the sites. 7 The Court has inspected the property and evidence has been received orally from the respective town planners to explain the reasons for their disagreement in relation to matters they have been unable to resolve in joint conference. The council's planner, Sue Foster, contends that the majority "of units (78 out of the proposed 115) do not comply with minimum size requirements prescribed under Council's Residential Amenity Policy". Moreover, she says while "a number of these non-compliances are relatively minor around half of the units (56 units or 49%) are significantly undersize by between 5m2 and 20m2". Ian Cady, the town planning consultant engaged by the applicant, produced the following table comparing proposed unit sizes to the Sydney DCP – Control and the Residential Flat Code "rules of thumb" (sic):- Control/ Guideline Proposed Development Res Flat CS DCP 1996 Min.Unit Size Average Size Maximum unit size Number of units Code Studio - 40m2 32.50m2 54.6m2 59.8m2 5 1 bedroom 50m2 55m2 39m2 48.2m2 60.60m2 49 2 bedroom 70m2 80m2 61.40m2 73.7m2 123.20m2 58 3 bedroom 90m2 100m2 114.10m2 146.2m2 166.40m2 3