Land and Environment Court of New South Wales CITATION : Stamford Property Services Pty Ltd v The Council of the City of Sydney [2002] NSWLEC 8 APPLICANT: Stamford Property Services Pty Ltd PARTIES : RESPONDENT: The Council of the City of Sydney FILE NUMBER(S) : 10699 of 2001 CORAM: Bignold J KEY ISSUES: Development Application :- Development appeal-Converting serviced apartments to residential apartments-SEPP No 1 objection in respect of maximum floor space ratio-non-compliance with DCP requirements LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 97Strata Schemes (Freehold Development) Act 1973, s 7(2A) CASES CITED: DATES OF HEARING: 14 and 15 January 2002 DATE OF JUDGMENT: 02/01/2002 APPLICANT: Mr M Tobias, QC with Mr Parry, Barrister SOLICITORS Mallesons Stephen Jaques LEGAL REPRESENTATIVES: RESPONDENT: Mr D Miller, Barrister SOLICITORS Pricewaterhouse Coopers Legal JUDGMENT: IN THE LAND AND Matter No. 10699 of 2001 ENVIRONMENT COURT OF Coram: Bignold J. NEW SOUTH WALES 1 February 2002 STAMFORD PROPERTY SERVICES PTY LTD Applicant v THE COUNCIL OF THE CITY OF SYDNEY Respondent JUDGMENT Bignold J: A. INTRODUCTION 1. This is an appeal pursuant to the Environmental Planning and Assessment Act 1979 (the EP&A Act) s 97 against the deemed refusal by the Council of the Applicant's development application to convert the use of 143 serviced apartments situate on levels 1 to 8 inclusive of an existing building situate at Nos 167-187 Kent Street Sydney and known as the "Stamford Plaza Hotel" into 128 residential apartments. (In its original form, the application proposed the conversion of the use of the 143 serviced apartments into use as residential apartments of the same number of units. However, following consultation with the Council, the application was amended to reduce the number of proposed residential apartments by combining a number of adjoining existing serviced apartments to form larger apartments resulting in the reduction of units from 143 to 128). 2. Subsequent to the commencement of the present proceedings, the Council has recently determined the development application by the resolution of the Central Sydney Planning Committee passed on 13 December 2001 refusing development consent for the following reasons: 1. The State Environmental Planning Policy No. 1 (SEPP 1) objection is not well founded for the following reasons: (a) The proposal fundamentally changes the nature of the use, despite there being no increase in floor space area; (b) The changed nature of the development is retrograde, given the amenity of the units and the mix does not comply with the City's planning controls; (c) The maximum floor space ratio for the building was previously achieved based on concessions for the serviced apartment component. This aspect of the development is being removed, and the applicant is still seeking further concessions in a statutory environment where planning controls have become more stringent. 2. The application would not provide an acceptable level of amenity for the proposed residential units on levels 1-8 of the building as the size and the unit mix of units, and the number of units that are accessible from a common lobby do not comply with the controls within Central Sydney Development Control Plan 1996; 3. The application does not provide an acceptable range of units on levels 1-8 of the building; 4. The application would create an undesirable precedent in that the proposed residential units on levels 1-8 of the building would not comply with the controls under Central Sydney Development Control Plan 1996, where it is reasonable that they should; and 5. Granting consent would not be in the public interest. 3. Prior to that determination, the Council had filed in Court its Statement of Issues raised by the appeal. That Statement raises eight issues which include the reasons for the Council's later determination of the development application and it is by reference to that Statement that I propose to adjudicate the present appeal. 4. In hearing the present appeal, I have been assisted by Commissioner Hoffman pursuant to the Land and Environment Court Act 1979, s 37(1). B. THE PROPOSED DEVELOPMENT AND THE DEVELOPMENT HISTORY OF THE APPEAL SITE 5. Erected on premises Nos 167-187 Kent Street is an existing building comprising 27 storeys that came into existence following the grant of development consent by the Council on 13 June 1997 for the conversion and re-development of an existing office building (known as "Caltex House") for residential accommodation containing 143 serviced apartments on levels 1 to 8 inclusive and 158 residential apartments on the remaining levels rising from level 9 together with five basement levels for carparking. 6. The 1997 development consent involved a floor space ratio of 15.5:1, the then maximum ratio permitted by Central Sydney Local Environmental Plan 1996 (the LEP) of which 31.29 per cent was to be available for the serviced apartments component of the development. 7. That amount of floor space available for serviced apartments was granted pursuant to the dispensational power conferred by State Environmental Planning Policy No 1 —Development Standards (SEPP No 1) because at that time (but not at present) cl 40(2) of the LEP provided as follows: Serviced apartments may occupy up to 30 per cent of the total floor space area of a residential building, but only if: (a) the serviced apartments have separate lift access in the building and (b) no access is available from the serviced apartments to the other residential floors in the building. 8. Following the completion of the construction of the 1997 approved development (the building contract was for the price of $82.5 million) the land (including the constructed building) was subdivided pursuant to the Strata Schemes (Freehold Development) Act 1973, s 7(2A) into two "stratum parcels" (as defined by that Act), namely lots 88 and 89 in Deposited Plan 1007712 (registered by the Registrar General on 8 February 2000). Lot 88 comprises the major part of each of the five basement levels of the building, a minor part of the ground level of the building, a minor part of levels 1 to 8 inclusive, and all levels rising from level 9 of the building. Lot 88 became the subject of the strata scheme created by the registration on 21 February 2000 by Strata Plan 61643. 9. Lot 88 and the 158 lots in the Strata Plan represent the 158 residential apartments contained in the building which apartments are known as "Stamford on Kent". 10. Lot 89 comprises minor parts of each of the basement levels of the building, the majority of the ground floor level of the building and all of levels 1 to 8 of the building except for the lift shaft servicing the residential apartments in "Stamford on Kent". Lot 89 became the subject of a strata scheme upon the registration on 14 January 2002 of Strata Plan 61897 comprising the 143 serviced apartments which comprise the residential accommodation of the "Stamford Plaza Hotel", which has been operating as a five star hotel since May 2000. 11. Conformably to the Strata Schemes (Freehold Development) Act 1973, s 28R upon registration of Deposited Plan 1007712 creating the two "stratum parcels" (comprising lots 88 and 89), the Registrar General registered a Strata Management Statement for the building erected on land known as Nos 167-187 Kent Street, Sydney. That Strata Management Statement (Exhibit 1) includes provisions concerning "shared facilities" detailed in the Schedule 1 to the Statement, these being "services, facilities, machinery and equipment" relating to (i) fire protection services; (ii) lifts; (iii) hydraulics; (iv) air conditioning; (v) electrical; (vi) security; (vii) loading dock; (viii) car hoists; (ix) car entrances; and (x) garbage chutes and stipulates the respective obligations of each "member" to the Statement (namely (i) the owners' corporation of the Strata Scheme in respect of lot 88 ("Stamford on Kent") and (ii) the owner of the remainder of the building being lot 89 ("Stamford Plaza Hotel")) which latter reference now includes the owners' corporation of the strata scheme created by the registration of Strata Plan 61897. 12. The Strata Management Statement also contains provisions in respect of the "Health Club" (comprising the gymnasium and swimming pool located on level 1 of the building) including a license right conferred upon the owners and occupiers of the "Stamford on Kent" apartments and cost sharing arrangements between the members of the Strata Management Statement for the operation of the Health Club. 13. The proposed development, as described in the Applicant's development application, is to change the use of the existing 143 serviced apartments to use as residential apartments. By virtue of the amendment to the proposal earlier mentioned, resulting in the reduction in the number of apartments to 128, there will be the need for some very minor physical works to be carried out involving on each of the levels 1 to 8 inclusive, the amalgamation of two serviced apartments so as to form one larger residential apartment (but not involving any structural alterations to the building). C. THE PLANNING CONTROLS APPLYING TO THE PROPOSED DEVELOPMENT 14. The proposed development is a form of permissible development for land situate in the City Centre Zone under the LEP (as is the appeal site). 15. The LEP relevantly differentiates between the present use (as serviced apartments) and the proposed use (as residential apartments) by providing separate definition of "residential building" and "serviced apartments" as follows: Residential building means a building which contains one or more dwellings, and in which the residential component is owner-occupied or occupied by a tenant with a residential tenancy agreement within the meaning of the Residential Tenancies Act 1987. Serviced apartments means a building containing two or more self-contained dwellings: (a) which are used to provide short-term accommodation, but not subject to residential tenancy agreements within the meaning of the Residential Tenancies Act 1987, and (b) which are serviced or cleaned by the owner or manager of the apartments or the owner's or manager's agents. 16. Each of these definitions refers to a "dwelling" which is defined by the LEP as follows: Dwelling means a room or a suite of rooms occupied or so constructed or adapted as to be capable of being occupied or used as a separate dwelling. 17. The principal point of differentiation lies in the absence from the definition of "serviced apartments", but the presence in the definition of "residential building" of, a residential tenancy agreement in terms of the Residential Tenancies Act 1987, and the inclusion within the former definition, but the absence from the latter definition, of the concept of short-term accommodation. 18. The LEP imposes no specific controls on residential development within the City Centre Zone (other than the statement of objectives for that Zone contained in cl 18 and the statement of objectives of the Plan contained in cl 12). However, the LEP imposes controls on the height of buildings (Part 4) and on floor space ratios (Part 5) in respect of development generally (which obviously includes residential development). 19. It is in respect of the floor space ratio controls that the Applicant has supported its development application by an objection pursuant to SEPP No 1 because the floor space ratio of the building erected on the subject land is, as earlier noted 15.5:1, which far exceeds the prevailing maximum floor space ratio of 11:1 (which includes the addition of up to 3:1 maximum floor space) currently imposed by cl 35. In this respect, it is to be noted that maximum floor space ratios prescribed by the LEP were substantially reduced by the coming into force on 3 March 2000 of Central Sydney Local Environmental Plan 1996 (Amendment No 8). I shall later consider the Applicant's written objection pursuant to SEPP No 1. 20. Detailed planning controls for residential buildings and serviced apartments are included in Central Sydney Development Control Plan 1996 (the DCP). Part 6 of the DCP is headed "Residential Buildings and Serviced Apartments" and contains detailed provisions on the following subject matters:— (i) daylight; (ii) side and rear setbacks; (iii) lightwells and internal courtyards; (iv) sun access; (v) ventilation; (vi) visual privacy; (vii) outlook; (viii) acoustic privacy; (ix) design of rooftop area; (x) use of building setback areas; (xi) floor to ceiling height; (xii) safety and design; (xiii) mix of units within a residential development; (xiv) mix of units within a serviced apartment development; (xv) size of units within a residential and serviced apartment development; (xvi) maximum number of units accessible from a common lobby; (xvii) internal unit design. 21. Each of the detailed provisions on the foregoing subjects is preceded by the following statement of the "Strategy" and "Objective" under the sub-heading "Amenity for residential buildings and serviced apartments". Strategy The consent authority is seeking to ensure that residential buildings within Central Sydney will be of high amenity, encouraging an increase in the residential population to the city (see Figure 6.1). Serviced apartments, which often cater for longer stay visitors, should have a comparable level of amenity to residential buildings so that any subsequent conversion of serviced apartments to permanent residential stock is not constrained by poor amenity. For the purposes of this section, the term dwelling unit refers to units in both residential buildings and serviced apartments. The amenity of dwelling units is influenced by factors including daylight access to the principal living room, siting and orientation of the development to provide privacy. The following provisions are intended to ensure a reasonable level of amenity for dwelling units, recognising that achievable residential amenity in Central Sydney may differ from that achievable in lower density situations. The provisions concentrate on the design of dwelling units, their relationship to their surroundings and key issues of internal amenity. Relevant aspects of AMCORD – A National Resource Document for Residential Development (Department of Housing and Urban Development 1995) should also be considered during the design phase. The provisions in this section do not apply to dwelling houses. Objective · to enhance the amenity of residential buildings and serviced apartments in terms of daylight, sun access, ventilation, privacy, outlook, noise, safety, recreation facilities and storage. 22. It is common ground that the proposed development complies with each of the detailed provisions of Part 6 of the DCP except for the following four provisions:— (i) Mix of units within a residential development 6.1.27 All residential developments in excess of 20 dwellings shall provide the following mix of units: Studio apartments Maximum of 15% 1 bed apartments Maximum of 30% 2 bed apartments Minimum of 40% 3+ bed apartments Minimum of 15% 6.1.28 The mix of units may be varied at the discretion of the consent authority where the applicant can demonstrate to the consent authority that the required mix of units is inappropriate in the circumstances of the development. 6.1.29 The maximum percentage of 1 bedroom units may be increased above 30%, provided the numbers of studio apartments and 1 bedroom units does not exceed 45% of the total units proposed. (ii) Mix of Units within a Serviced Apartment development 6.1.30 All serviced apartment developments in excess of 20 dwellings shall provide the following mix of units: Studio/1 bed apartments Maximum of 60% 2+ bed apartments Minimum of 40% 6.1.31 The mix of units may be varied at the discretion of the consent authority where the applicant can demonstrate to the consent authority that the required mix of units is inappropriate in the circumstances of the development. 6.1.32 For serviced apartments, a 2 bedroom apartment may be deemed to comply if it comprises a one bedroom apartment adjacent to either another 1 bedroom apartment, or studio apartment. In such a situation, both apartments are to be accessible from a shared private lobby. Such an arrangement must be defined as a single strata unit. 6.1.33 Where serviced apartments are proposed to be converted to residential dwellings, they must comply with the residential dwelling mix criteria and must convert any of the above deemed to comply 2 bedroom units to a conventional 2 bedroom unit arrangement. (iii) Size of Units within a Residential and Serviced Apartment developments 6.1.34 All units within residential and serviced apartment developments are to provide the following minimum unit sizes Studio apartments 40sqm 1 bed apartments 55sqm 2 bed apartments 80sqm 3+ bed apartments 100sqm 6.1.35 Calculation of the unit size is a net area and is to be exclusive of balconies and excessive internal circulation with the units. The 50% storage area required under clause 6.1.23 can be included as part of this calculation. (iv) Maximum number of units accessible from a common lobby 6.1.36 In all residential and serviced apartment developments, the number of dwelling units per floor accessible from a common lobby is limited to a maximum of ten (10). 6.1.37 The consent authority may consider a variation in the maximum number of units per floor, where the applicant can demonstrate that a high level of amenity of the common lobby, corridors and units is achieved. This may recognise where alternate floor access corridors enable cross-ventilation apartment designs. 23. Each of these four provisions, with respect to which the proposed development does not appear to comply, was introduced into the DCP on 27 April 1999 when Central Sydney Development Control Plan 1996 (Amendment No 5) came into force. 24. Prior thereto (including when the 1997 development consent was granted for the re-development of the subject land), no such provisions were contained in Part 6 of the DCP. However at that time, the DCP contained the same statements of "strategy" and "objective" in respect of "the amenity for residential development and serviced apartments" that is currently contained in the DCP the terms of which I have earlier recited in paragraph 21. (However, as earlier noted, when the 1997 development consent for the re-development of the subject land was granted, cl 40(2) of the LEP limited the serviced apartments component of an approved residential building to a maximum of 30 per cent of the total floor space of the building). 25. The documentary evidence (Exhibit J) traced the origins and planning rationale for the additional controls on residential development and serviced apartments and the processes whereby the DCP came to be amended by Amendment No 5. That documentary evidence indicates that by April 1998, the Council's planning staff had become aware of the emerging trend for studio and 1 bedroom residential apartments and serviced apartments to dominate the character of new residential developments occurring in the City of Sydney. 26. This was perceived to be an "over-correction" in terms of the supply of studio and 1 bedroom residential accommodation, the increase in which had been an express aim of the Council's Residential Strategy adopted in 1996. This trend generated concern in Council's planning staff that it was "not consistent with the longer term vision of a vibrant and sustainable city", and prompted the suggested solution of planning controls being introduced into the DCP to control the mix of dwelling units in residential buildings and serviced apartments, together with controls on minimum dwelling unit sizes "to assist in achieving a permanent population for the city" by providing a "balanced and diverse supply of residential accommodation across Central Sydney, capable of sustaining the various requirements of a changing city population". 27. Notwithstanding the objections raised in response to the public exhibition between December 1998 and January 1999 of draft Amendment No 5 to the DCP by the Property Council of Australia, Meriton Apartments and Medina Apartments (being three of the five persons who made submissions to the exhibited draft Amendment No 5 to the DCP) the Council on 27 April 1999 adopted Amendment No 5 to the DCP after considering reports from its planning staff recommending adoption of the Amendment No 5. 28. In respect of the proposed controls on unit mix, the Council's planning report provided the following comment— The proposed controls are aimed at providing greater variety of dwelling stock. Providing a range of unit sizes allows a greater range of household structures to access city living, including single person households, couples, group households and families with children. Recent development applications have been skewed in favour of small units, with 59% of the dwellings and 75% of serviced apartments approved in 1998 being studios or single bedroom apartments. The controls recognise that serviced apartments may be used in the future for permanent accommodation, hence the need for storage space and a unit mix that will cater for a variety of households and allow for adaptation to meet changing needs. D. HOW THE PROPOSED DEVELOPMENT MEASURES UP TO THE RELEVANT PLANNING CONTROLS 29. It is now necessary to examine how the proposed development measures up in respect of each of the identified controls of the DCP with which it does not comply (or does not appear to comply). 30. At the outset of the process, a difficulty of construction is encountered with the dwelling mix controls, or if not precisely a difficulty of construction, a related difficulty of application of those controls to the facts of the present case. 31. The difficulty, (be it one of construction or application) in the case of cl 6.1.27, concerns the meaning of "all residential developments" or more particularly does that expression mean, in the present case, the whole of the building erected on the subject land (including the 158 apartments of "Stamford on Kent") or only that part of the building that comprises the stratum being lot 89 in Deposited Plan 1007712, being 143 serviced apartments of the "Stamford Plaza Hotel" which are proposed to be converted into 128 residential dwellings? 32. For the moment, I shall defer my consideration of this question, while at once noting that there is a radical difference in the result of compliance or non-compliance with the control on unit mix depending upon the answer to the question, as can be appreciated by the comparison in the following two tables, the first of which (Table A) analyses the proposed development on the basis (as contended by the Council) that the provision applies to the proposed development unrelated to the existence on the subject land of the "Stamford on Kent" apartments, whereas Table B analyses the proposed development on the basis (as contended by the Applicant, but not necessarily as a matter of construction) that the provision applies to the whole of the development that exists in the building erected on the subject land (including the "Stamford on Kent" apartments). TABLE A Residential unit type Mix of units required under Central Sydney DCP 1996 Mix of proposed units on levels 1-8 (total 128 units – previously 143 units) Studio Apartments Maximum 15% 35.1% (45 units) 1 bed apartments Maximum 30% 46.9% (60 units) 2 bed apartments Maximum 40% 18.0% (23 units) 3+ bed apartments Maximum 15% 0% (0 units) TABLE B Residential unit type Mix of units required under Central Sydney DCP 1996 Mix of units on levels 1-25 (total 283 units) Studio apartments Maximum 15% 15.9% (45 units) 1 bed apartments Maximum 30% 29.3% (83 units) 2 bed apartments Minimum 40% 37.1% (105 units) 3+ bed apartments Minimum 15% 17.7% (50 units) 33. The following Table (Table "C") shows the size of each of the proposed 128 residential apartments, 9 of which are located on level 1 (which also contains the gymnasium and swimming pool comprising the Health Club) and 17 of which are located on each of the levels 2 to 8 inclusive. TABLE C Level Apartment No. Apartment Type Size (m2) DCP minimum size (m2) Variation in size m2 (%) 1 1 2 bed 72.5 80 -7.5 (-9.4%) 2 1 bed 61.5 55 +6.5 (+11.8%) 3 1 bed 56.5 55 +1.5 (+2.7%) 4 1 bed 53 55 -2 (-3.6%) 5 1 bed 57 55 +2 (+3.6%) 6 Studio 39.5 40 -2.5 (-6.25%) 7 Studio 37.5 40 -2 (-5%) 8 Studio 38 40 +5.2 (+6.5) 9(consolidated serviced apartments 9&10) 2 bed 85.2 80 +5.2 (+6.5) Levels 2-8 2 bed 72.5 80 -7.5 (-9.4%) 2 1 bed 61.5 55 +6.5 (+11.8%) 3 1 bed 58 55 +3 (+5.4%) 4 1 bed 55.5 55 +0.5 (+0.1%) 5 1 bed 61.5 55 +6.5 (+11.8%) 6 1 bed 54 55 -1 (-1.8%) 7 1 bed 54.3 55 -0.7 (-1.3%) 8 (consolidated serviced apartments 8&9) 2 bed 125.2 80 +45.2 (+56.5%) 9 Studio 37.5 40 -2.5 (-6.3%) 34. It is to be noted from Table C that none of the 45 studio apartments complies with the 40 m2 minimum size stipulation of cl 6.1.34. 35. Table C reveals that there are 15 studios having a deficit in minimum area of 0.5 m2, 8 studios having a deficit in minimum area of 2 m2, and 22 studios having a deficit in minimum area of 2.5 m2. 36. It is also to be noted that each of studio apartments is located on the eastern side of the building (ie facing Kent Street) and each apartment has a separate balcony off the living room, which if included in the overall floor space of each of the studio apartments (as is depicted in Strata Plan 61897) would result in each of the 42 studio apartments located on levels 2 to 8 inclusive, having a floor area of 42 m2 or 43 m2 and each of the three studio apartments located on level 1 having floor areas of 38 m2, 40 m2 and 41 m2 respectively. In noting the existence of the balcony spaces, I do not overlook the fact that the 6.1.35 expressly excludes the area of balconies from being included in the calculation of the unit size. (Nonetheless, the provision of balconies to these studio apartments provides a relevant amenity). 37. In respect of the control imposed by cl 6.1.36, it is common ground that except for level 1 which contains 9 proposed apartments, each of levels 2 to 8 inclusive contains 17 residential apartments which exceeds the maximum number of 10. Lift access to all eight levels is via the lifts numbered 1 and 2 situate at the southern end of the building as shown on the copy of the development application plan annexed hereto and marked A showing the layout of the apartments and lift lobby and corridor on level 2 (which is typical of the layout for levels 2 to 8 inclusive). 38. It is common ground that the maximum travel distance from the lift lobby to the apartments most distant therefrom on each of the levels 2 to 8 inclusive is 52 m. It is to be noted that lift no 6 which is located in the mid section of each level of the building adjoining lifts numbered 5 and 7 (which exclusively serve the "Stamford on Kent" apartments) is also available as an "emergency lift" to levels 1 to 8 inclusive. E. APPLICANT'S OBJECTION PURSUANT TO SEPP NO 1 39. As earlier mentioned, the Applicant supported its development application by written objection pursuant to SEPP No 1 in respect of the application of the maximum floor space ratio currently prescribed by clause 35 of the LEP, subclause (1) which relevantly provides as follows: (1) The floor space ratio of a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. 40. It is common ground that the floor space ratio so shown is 8:1 and that cl 35(1B) enables the Council in certain circumstances (which need not be detailed here) to consent to a development which will result in a building having an additional floor space ratio up to a maximum of 3:1 (ie yielding a total maximum floor space ratio of 11:1 for the appeal site). 41. The Applicant's objection pursuant to SEPP No 1 assumes that cl 35 relevantly limits the floor space of the existing building erected in the subject land and that that clause relevantly applies to the Applicant's proposed development. 42. The question whether cl 35 applies to the proposed development was not seriously debated or explored in the present case. Although there are obvious difficulties in giving the provisions of subclause (1) a literal construction (because it would mean that every building having a floor space ratio exceeding the maximum ratio now prescribed by cl 35 would contravene the provision with possible legal consequences which again were not explored at the hearing) the Applicant, at the hearing, doubtless for more abundant caution, maintained its objection pursuant to SEPP No 1. 43. I interpose the observation that this stance was entirely consistent with its approach to the application of the controls on dwelling mix imposed by the DCP, namely that it is both realistic and appropriate to consider the existing building erected on the subject land in its totality, as comprising a single entity or development. 44. The full text of the Applicant's objection pursuant to SEPP No 1 is annexed hereto and marked "B". 45. Briefly summarised, the Applicant's objection (i) explains the history of the relevant planning controls as in force when the 1997 development consent was granted for the re-development of the existing building and subsequently, (ii) analyses the proposed development in terms of the stated objectives for the statutory floor space ratio controls contained in cl 34 of the LEP, concluding that all relevant objectives are satisfied; and (iii) notes that because the proposed development does not involve any physical change to the building bulk or floor space of the existing building, the grant of development consent to the proposed development will not establish any adverse precedent, particularly since each of the three existing high rise residential apartment buildings in the immediate vicinity of the appeal site (the "Highgate", the "Observatory Tower" and the "Georgia") involves a similar floor space ratio to that of the existing building erected on the subject land. F. ADJUDICATION ON THE ISSUES RAISED BY THE COUNCIL 46. The Council's Statement of Issues (Exhibit 1) raises the following eight issues: 1. Whether the proposed development would provide an acceptable level of amenity, to the proposed residential units on levels 1 – 8 of the building, given that: (a) the size; (b) the number of units; and (c) the mix of units are accessible from a common lobby and do not comply with the controls contained in the Central Sydney DCP 1996 ("DCP"). 1. Whether the proposed development complies with the floor space ratio requirements of Central Sydney LEP 1996. 2. Whether the SEPP 1 objection in relation to the floor space requirements of Central Sydney LEP 1996 is well founded. 3. Whether the proposed development provides an acceptable range of residential units on levels 1 -8 of the subject building. 4. Whether the associated change of nature of the use that is proposed by the development application would require an improved level of amenity, having regard to the conversion from serviced apartments to residential units. 5. Whether the proposed development encourages the proper and equitable management of the building which has already been subdivided into two lot stratum subdivision with associated separate lots for parts of the building and indeed whether these separate lots for parts of the building should be in common property, having regard to the change of the nature of the use. 6. Whether the proposed development would create an undesirable precedent in that the proposed residential units on levels 1 – 8 of the building do not comply with the DCP 1996. 7. Whether the proposed development is in the public interest. 47. I think it is reasonable and convenient to consider in tandem the related Issues 1, 4 and the related 5 and the related Issues 2 and 3 and thereafter to separately consider the remaining three issues. 48. However, it is logical and necessary to commence my consideration with Issues 2 and 3 because it is only if the Applicant's objection pursuant to SEPP No 1 is upheld that a consideration of the merits of the development application can proceed "notwithstanding the development standard" relevantly imposed by cl 35 of the LEP prescribing the maximum floor space ratios. (i.) ISSUES 2 AND 3— The proposal's non-compliance with the maximum floor space ratio prescribed by the LEP and the Applicant's Objection pursuant to SEPP No 1. 49. Although at an earlier stage in the proceedings the Applicant had raised the question of law as to whether cl 35 of the LEP (imposing maximum floor space ratios) applied to the Applicant's development application, as I have earlier mentioned, on the hearing of the appeal the Applicant maintained its objection pursuant to SEPP No 1 in respect of cl 35 of the LEP operating as a relevant development standard. This means that it is conceded for the purposes of the present appeal that cl 35 of the LEP relevantly applies to the proposed development and that in consequence, it is no longer necessary to adjudicate upon the question earlier raised by the Applicant. 50. Accordingly, the only outstanding question in respect of Issues 2 and 3 is whether the Applicant's SEPP No 1 objection is well founded. 51. In his Report to the Council's Central Sydney Planning Committee, Mr Kass, the Council's Acting General Manager, expressed the opinion that the Applicant's SEPP No 1 objection was not well founded for the following reasons— (a) The proposal fundamentally changes the nature of the use, despite there being no increase in Floor Space Area; (b) The changed nature of the development is retrograde, given the amenity of the units and their mix does not comply with Council's planning controls; (c) The applicable maximum FSR for the site has decreased to 8:1 since its approval; (d) The maximum FSR for the building was previously achieved based on concessions for the serviced apartment component. This aspect of the development is being removed, and the applicant is still seeking further concessions in a statutory environment where the controls have reduced and become more restrictive. 52. The Central Sydney Planning Committee adopted in their entirety Mr Kass' recommendations for refusing development consent to the Applicant's development application including his recommendation that the SEPP No 1 objection be held not to be well founded for the reasons he had advanced in his Report. 53. These reasons for rejecting the Applicant's SEPP No 1 objection were concurred in by Mr Ian Glendinning, Consultant Town Planner, in his Statement of Evidence (Exhibit D) who added the following reasons in support of the same conclusion: I agree with the Council's conclusions and note that the applicant relies totally upon the proposition that the proposed development does not result in any physical changes to the building. The applicant makes no comment about the changed nature of the building should it become residential units. The circumstances relating to the promotion of increased FSR to promote increased opportunities for serviced apartments within the city have changed. The increased intensity of use inherent in this proposal must only be approved upon full compliance with Council's development standards. In the absence of compliance the intensity of use cannot be supported and therefore the SEPP 1 objection in relation to compliance with FSR standard is not supported. 54. Under cross-examination, Mr Glendinning conceded that the floor space achieved by the approved re-development was not dependent upon the inclusion within the approved development of the serviced apartments component. The same floor space was achievable at the time the 1997 development consent was granted if the whole of the building had been proposed to be used for residential apartments, without there being any component of serviced apartments. 55. Contrary opinions to those of Mr Kass (who was not a witness) and Mr Glendinning were given in the evidence of Professor Peter Webber (whose Report was Exhibit 3) and Mr Harvey Sanders (whose Report was Exhibit 4) supporting the upholding of the Applicant's SEPP No 1 objection. 56. Professor Webber expressed the following opinion in par 4.6 of his Report: The State Environmental Planning Policy No 1 Objection as submitted to Council and Court is a comprehensive document which appears to me to set out all the necessary relevant material. The building as it stands complied with floor space ratio requirements of the Central Sydney LEP at the time of its approval (only 31/2 years ago) at a ratio of 15.5:1. it would not comply with the current LEP (Amendment No 8) which permits a maximum ratio of 12:1. The SEPP 1 objection is in my view well founded , but the Issue is in any case somewhat theoretical – in that the building exists whether or not the change in category of dwelling accommodation is approved, and the impact of the proposed change would be negligible. 57. Mr Sanders expressed the following opinion in pars 5.15 and 5.16 of his Report: 5.15 In my opinion, the arguments for departure from the standard are well founded and the SEPP 1 application should be supported, if, indeed, it is required. I would also note that contrary to the assertion in the Officer's Report to the Central Sydney Planning Committee the proposal does not fundamentally change the nature of the use nor, in my opinion, is the proposed change retrograde. 5.16 Further to the arguments raised in the submitted SEPP 1 objection, the 15.5:1 maximum floor space ratio that was granted to the subject building in the development approval 97/00082, issued on 13 June 1997, was not dependant upon the building including serviced apartments. Indeed, a building containing only residential units could have been approved, at that time, with the same floor space ratio. Therefore, it is important to note that an application could have been made to convert the serviced apartments in the building, with no implications relating to the permissible floor space ratio controls, up until the time Amendment No. 8 to LEP 1996 was gazetted — 3 March 2000. 58. In my judgment, the Applicant's SEPP No 1 objection is well founded in that it is both unreasonable and unnecessary that the proposed development comply with the development standard comprising the maximum floor space ratio prescribed by cl 35 of the LEP because that development does not involve (i) any change in the floor space already provided in the existing building or (ii) any change to the external appearance of the existing building. 59. To the extent that the opinions of both Mr Kass and Mr Glendinning are founded on the proposed changed use of the same floor space and their unfavourable evaluation of that changed use, I would respectfully reject those opinions as being wholly based upon an irrelevant consideration. Their opinions concerning the proposed change of use are relevant to other Issues raised by the Council. However, they are no more relevant to the present Issue than is the fact of the present approved use as serviced apartments. Both present and proposed uses are permissible forms of development but both involve floor space in excess of the currently prescribed maximum floor space. The only distinction between the present and proposed uses (and in the present context, it is not a material difference) is that the proposed use, being the subject of a development application that seeks development consent, highlights the exceedance by the building as a whole of the currently applicable maximum floor space ratio. But it is merely the highlighting of a fact that applies to the present use as much as it applies to the proposed use (albeit the present use enjoys the benefit conferred by the EP&A Act, s 109B). 60. I do not stay to consider what floor space of the existing building relevantly exceeds the currently prescribed maximum floor space ratio. The present case has proceeded upon the common assumption that the excess floor space relevantly is that contained on levels 1 to 8 inclusive. However, this assumption has not been tested or validated. Nor is it self-evidently correct. Somewhat curiously the Council's principal contention on other Issues raised by the case, that levels 1 to 8 inclusive of the existing building constitute the relevant building for the purposes of evaluating the present development application, is silent on this particular issue. If it were applied to the present issue, this would not be a case of the proposed development involving a floor space in excess of the currently applicable maximum floor space ratio. 61. Accordingly, I find that the Applicants' SEPP No 1 objection is well founded. (ii.) ISSUES 1, 4 AND 5 — Whether the proposal provides an acceptable level of residential amenity in view of its non-compliance with the requirements of the DCP in respect of (i) dwelling mix; (ii) dwelling size; and (iii) maximum number of dwellings per floor 62. Here again there were competing opinions expressed by Mr Glendinning for the Council and by Professor Webber and Mr Sanders for the Applicant. 63. Mr Glendinning considered the proposed development's degree of non-compliance with the relevant DCP requirements to be "significant" and that, whether considered as a consequence of that degree of non-compliance, or independently of that consideration, the level of residential amenity of the proposed residential apartments and particularly the studio apartments, was "extremely poor". He opined that the dominance of studio and 1 bedroom apartments (82 per cent of all apartments) was likely to have adverse social impacts on the "Stamford on Kent" apartments and on the Council's objectives for achieving a permanent residential population in the City. 64. In expressing these opinions, Mr Glendinning considered it appropriate to evaluate the proposed development as being confined to levels 1 to 8 of the existing building as "a stand alone development". His reasons for so concluding adopted the same reasons that had been expressed in Mr Kass's Report to the Central Sydney Planning Committee, namely— (a) While the whole building is physically one, it is functionally and legally two buildings, due to the arrangement of foyers, lifts, and general areas; (b) The different stratums and roles within the building is evidenced by the inability to obtain owner's consent from Stamford on Kent (the apartments on levels 9-25) to an amalgamated allotment; (c) In essence there is no difference between the building being divided in another form, such as buildings next to each other rather than above each other, in which case the unit mix requirements would apply independently to the buildings; and (d) The nature of the use is changing to permanent residential accommodation and it is reasonable to apply requirements aimed at addressing residential amenity and long term planning policies. 65. Both Professor Webber and Mr Sanders were of the opinion that in considering the DCP requirements for dwelling mix it was appropriate to consider the existing building as a totality. Professor Webber thought that this was a "common sense approach" and Mr Sanders advancing similar reasons, thought that the whole of the existing building, particularly since it was now proposed to be used wholly as residential apartments, was the relevant "planning unit" for the purpose for applying the DCP requirement for mix of dwellings. In particular, both Professor Webber and Mr Sanders thought the fact that the existing building had been historically used for two separate purposes (residential apartments and the Stamford Plaza Hotel) and in that respect had been managed as two separate strata, did not displace or override the proper town planning assessment of the development, as forming a part of an overall residential development contained within one existing building. 66. In my judgment, it is appropriate to consider the whole of the existing building as providing residential apartment development for the purpose of applying the requirements of the DCP controlling mix of dwellings. This conclusion does not depend upon the proper interpretation of the expression "all residential developments" appearing in cl 6.1.27 of the DCP, yielding that result (although such an interpretive result is legitimately available) because of the existence of the discretion to vary the dwelling mix conferred by cl 6.1.28. 67. Accordingly, and even accepting the Council's very legitimate interpretation of the expression "all residential developments" in cl 6.1.27 as requiring the conclusion that the proposed development is confined to levels 1 to 8 of the existing building and does not include the whole of the existing building, I am of the opinion that the existence within the same building of the "Stamford on Kent" apartments is a relevant "circumstance of the development" within the meaning of cl 6.1.28 of the DCP. 68. Moreover, I am of the opinion that that circumstance in and by itself, justifies the exercise of the discretion to vary dwelling mix conferred by cl 6.1.28 on the basis that if regard be had to the mix of units in the "Stamford on Kent" apartments in conjunction with the mix of units in the proposed development, the resulting dwelling mix of those combined developments, as detailed in Table B set forth in par 32 of these reasons, produces virtually total compliance with the requirements of cl 6.1.27 if they were applied to all of the apartments housed in the whole of the existing building. 69. Another "relevant circumstance" which came to light only during Mr Sanders' oral testimony is the fact that in the existing very substantial residential tower developments in Kent Street, in the vicinity of the appeal site, the "Observatory Tower", "High gate" and the "Georgia" no studio apartments are provided. 70. Similarly, the approved development for a residential tower building at Nos 159 to 165 Kent Street (directly opposite the appeal site on the northern side of Gas Lane) provides no studio apartments. 71. Together with the existing building on the appeal site, those existing and approved high rise residential tower developments in that section of Kent Street which adjoins the Millers Point heritage precinct (containing low rise heritage residential development) do form an exclusive enclave of high rise residential development in this section of the City which probably exhausts the potential for high rise residential development in that precinct. The fact that in the many residential apartments so provided, it is only the proposed development that provides studio apartments, is in my opinion, a relevant circumstance in considering the DCP requirements for dwelling mix in the present case. 72. In so concluding, I do not accept the Council's argument that the phrase "in the circumstances of the development" appearing in cl 6.1.28 limits consideration to features of the proposed development itself. 73. I think the Council's interpretive approach imposes a narrowness or rigidity, which is unsympathetic to the purpose of conferring a discretionary variation power upon the consent authority where the expressed statutory criterion "inappropriate in the circumstances of the development" is obviously flexible. Whatever be the true meaning of this statutory phrase it is, in my judgment, wide enough to justify an applicant seeking a variation of the requirements for dwelling mix on the two bases advanced by the Applicant on the hearing of the present appeal, namely—(i) that it was appropriate to consider the mix of dwellings contained in the whole of the existing building erected on the appeal site; and (ii) that it was appropriate to consider the mix of dwellings provided by the existing and approved high rise residential apartment buildings located in geographic proximity to the appeal site. 74. For all of the foregoing reasons, I find that the Applicant has made out its case for a variation in the requirements for dwelling mix prescribed by cl 6.1.27 of the DCP. 75. Concerning the question of the residential amenity of the proposed residential apartments, both Professor Webber and Mr Sanders expressed the opinion that the apartments offered a high level of amenity. Both were of the opinion that the proposed conversion of use from serviced apartments to permanent apartments did not necessitate an increase in the current level of amenity. Professor Webber noted that the "image of the Central City apartment as a permanent house is often illusory" by virtue of the established phenomena of (i) absent or overseas landlords of tenanted apartments; (ii) owners using apartments as a second house ie a city base; (iii) increasing mobility of owners and frequent turnover of ownership. 76. Mr Sanders noted that most of the requirements of Part 6 of the DCP did not differentiate between serviced apartments and residential apartments. 77. It is, I think a matter of considerable significance for the adjudication of these disputed issues that the detailed requirements contained in Part 6 of the DCP apply commonly to residential apartments and serviced apartments. The only differential requirements concern the mix of dwellings for "all residential developments in excess of 20 dwellings" (as prescribed in cl 6.1.27) and for "all serviced apartment developments in excess of 20 dwellings" (as prescribed by cl 6.1.30)—(i) in the case of the former development, the prescribed mix allows a maximum of 15 per cent for studio apartments and a maximum of 30 per cent for one bedroom apartments, whereas (ii) in the case of the latter development, the prescribed mix allows a maximum of 60 per cent for studio/one bedroom apartments. 78. Doubtless, these differential requirements are directed to the promotion of the DCP's stated strategy "to encourage an increase in the residential population to the City", within the overarching strategy of ensuring "high amenity" for residential development. 79. In the present case, where I have already found the dwelling-mix of the proposed development to be acceptable, by exercising the power of variation conferred by cl 6.1.28, consideration of dwelling mix does not impinge or impact upon the required evaluation of the residential amenity of the proposed development, in terms of the detailed requirements of the DCP which are all directed to the stated DCP objective of "enhancing the amenity of residential buildings and serviced apartments". 80. As earlier noted, the proposed development complies with all the requirements of the DCP except for the requirements concerning— (i) dwelling mix; (ii) dwelling size; and (iii) dwellings per floor. 81. It may be noted that the present use as serviced apartments also fails to comply with those same three requirements, yet those serviced apartments are rated as five star hotel accommodation and obviously provide a very high level of amenity. 82. I have already dealt with the dwelling mix requirement of the DCP. This means that the proposed development does not comply with the two remaining requirements ie (i) dwelling size; and (ii) dwellings per floor. 83. The requirement in respect of the latter is subject to the variation power conferred by cl 6.1.37. In my judgment, the Applicant has demonstrated, through the evidence of Professor Webber and Mr Sanders (which I accept) that there is "a high level of amenity of the common lobby, corridors and units". Accordingly, I am satisfied that the variation power should be exercised in favour of the Applicant, noting that the proposal involves a slight improvement in terms of compliance, compared with the present use of the same floors as serviced apartments by virtue of reducing the overall numbers from 143 to 128 apartments. 84. The requirements for dwelling sizes prescribed by cl 6.1.34 are not the subject of any discretionary variation power. Accordingly, they are absolute requirements. I have earlier set out the sizes of the proposed 128 apartments (see Table C at par 33 of these reasons) and I have in pars 34 to 36 analysed the nature and degree of non-compliance with the prescribed sizes. 85. I find these non-compliances to be minor and arithmetic more than substantive, and as I have earlier stated, if the balcony floor space to each of the studio apartments is brought into account, only one of the 45 studio apartments would have an area less than the prescribed minimum area of 40 m2. 86. Although balcony floor space is expressly excluded from the calculation (vide cl 6.1.35), nonetheless the existence of a balcony to each of the studio apartments contributes to their residential amenity. 87. In terms of amenity, I accept the evidence of Professor Webber and Mr Sanders that the residential amenity of the proposed apartments (including the studio apartments) is high, despite the fact of non-compliance with the prescribed minimum dwelling sizes. 88. No doubt the proposal could be redesigned to achieve a result where the minimum dwelling sizes are entirely complied with. However, this would mean that the ready conversion of the existing 143 studio serviced apartments into 128 residential flats as is now proposed, would not be achieved and that there would be a waste of the present resources comprising the existing serviced apartments and their internal fit out. 89. It may be accepted that the value of the wasted resources would not be excessive or disproportionate compared with the value of the finished product, but nonetheless, there would be a wastage of existing resources and that wastage is not insignificant in itself. More to the point is the question whether compliance with the minimum dwelling size requirements would result in an appreciable increase in residential amenity, particularly in circumstances whether the prescription by the DCP of minimum dwelling sizes is obviously arbitrary, as attested by the documentary evidence (Exhibit J). 90. Ultimately, I am satisfied that the degree of non-compliance with the prescribed minimum dwelling sizes is insignificant and does not involve any appreciable element of loss or diminution of the residential amenity of the proposed apartments. 91. This leaves the question whether the studio apartments should provide some element of additional amenity over and above that provided by the current serviced apartments (the residential amenity of which is acknowledged to be of the highest order, as may be expected of accommodation enjoying a five star hotel rating). 92. Significantly any justification for enhanced amenity of residential apartments (because they will provide more permanent residential accommodation than that provided by serviced apartments) must be sought beyond the terms of Part 6 of the DCP because not only does it prescribe common requirements for residential apartments and serviced apartments in furtherance of the stated strategy and objectives of the DCP ("to ensure that residential buildings will be of high amenity" "to enhance the amenity of residential buildings and services apartments") but it requires serviced apartments to have "a comparable level of amenity to residential buildings so that any subsequent conversion of serviced apartments to permanent residential stock is not constrained by poor amenity". 93. In my judgment, the proposed development is entirely consistent with the stated strategy and objectives in Part 6 of the DCP. 94. In these circumstances, to require greater residential amenity for the proposed converted use, because residents will be more permanent than transitory, appears to me to be very difficult to justify. Again on this issue, I prefer the opinions of Professor Webber and Mr Sanders to the competing opinion of Mr Glendinning. 95. For all the foregoing reasons, I find that the amenity of the proposed residential apartments will be acceptable in the sense of being comparable to the high amenity enjoyed by the current use as serviced apartments. (iii.) ISSUE 6—The disadvantages of there being two separate Strata Schemes for two separate strata of the building 96. Interestingly, this issue does not form the basis or grounds for the Council's determination refusing development consent. 97. However, it remained an issue at the hearing, probably because of the evidence that was given on behalf of the Owners' Corporation of the "Stamford on Kent" apartments and various proprietors of some of those apartments. 98. That evidence indicates that no attempt has been made by the Applicant to amalgamate or merge the two separate strata schemes that exist in respect of different portions of the existing building. It also indicates that there is opposition to the proposal inasmuch as it will (i) result in the elimination from the building of the Stamford Plaza Hotel with the various services provided by that hotel which are commercially available to the owners and occupiers of the "Stamford on Kent' apartments; and (ii) probably increase the patronage of the Health Club with the prospect of higher contributions being required of the owners of the "Stamford on Kent" apartments towards the capital replacement costs and operational costs of the Club. 99. Some proprietors of the "Stamford on Kent" apartments apprehended that the value of their apartments would be diminished on account of the elimination from the building of a prestigious five star hotel and there was a suggestion that it was the existence of the hotel within the building that provided an inducement for the purchase of the apartments on "Stamford on Kent". 100. In my judgment, the matters raised by the Owners' Corporation and various owners of apartments in the "Stamford on Kent" apartments do not militate against the planning rationale for the proposed conversion of the serviced apartments into residential apartments. Nor do they justify refusal of development consent to the proposed development. 101. The content of the Strata Management Statement revealed the possibility of the Stamford Plaza Hotel ceasing to exist and the conversion of that development into another form of development such as is now proposed. 102. The Statement's content relating to the distribution of financial obligations between the two separate strata likewise recognises the possibility for a different form of development to be undertaken on the stratum comprising the Stamford Plaza Hotel. 103. Whereas there is nothing in the Statement that is rendered inapplicable by the coming into existence of the proposed development in lieu of the existing Stamford Plaza Hotel, there is nothing in the proposed development that would preclude merger of the two separate strata schemes if that were considered a desirable outcome in terms of Strata Schemes (Freehold Development) Act 1973. 104. What is more relevant is the question whether there are sound or compelling town planning reasons that dictate or mandate a change in the existing arrangements in force under the Strata Schemes (Freehold Development) Act 1973. 105. Mr Glendinning considered that there was a need to create an easement in respect of the use by the owners/occupiers of the proposed development of the emergency lift (part of the bank of lifts servicing the "Stamford on Kent" apartments and the lift lobby on the ground floor). 106. However, the emergency lift is included in the "shared facilities" in terms of the Strata Management Statement and it would appear that there is no reason to require the creation of an appropriate easement in respect of the use of that emergency lift. It is available to the serviced apartments and its ongoing availability to the proposed development appears to be secured by the terms of the Strata Management Statement. 107. The proposed development will bring into much closer harmony the use of the whole of the residential accommodation provided by the existing building and I accept the opinions of Professor Webber and Mr Sanders that the proposed development is, on that account, likely to assist in the overall management of the building. 108. For all the foregoing reasons, I find that the proposed development has no adverse consequences for the present and future arrangements for the Strata management of the building erected on the appeal site. Whether there is ultimately to become one strata scheme is a matter for the respective owners' corporations and the proprietors of all of the apartments contained within the existing building. (iv.) ISSUE 7—The precedental effect of consent being granted to a development that does not comply with the DCP requirements 109. Mr Glendinning was of the opinion that the grant of development consent to the proposed development would undermine the development controls prescribed by the DCP and hinder the achievement of the Council's objectives for encouraging more permanent residents living in the City. 110. Both Professor Webber and Mr Sanders disagreed. 111. In my judgment, the grant of development consent to the proposed development will not create an adverse planning precedent for the following reasons— (i) The proposed development accords with the DCP's stated Strategy and Objective for enhancing residential amenity and encouraging more permanent residents to live in the City; (ii) Although the proposal does not comply with three of the numerous development requirements prescribed by the DCP in respect of two of those requirements, the proposal justifies variation of the requirements, conformably to the power of variation expressly conferred by the DCP. Accordingly, in respect of those two requirements, the proposal is to be regarded as being conformable to the requirements. In respect of the only requirement (minimum dwelling size) with which the proposal does not comply, and for which there is no power of variation, the proposal substantially complies with the minimum sizes prescribed, but more importantly fulfils the DCP's express strategy and objective of providing high residential amenity development and of enhancing residential amenity. (iii) The factual circumstances pertaining to the proposed development are unusual (eg the existence of two separate strata schemes for different portions of the same building) and are not likely to be replicated to any significant degree—hence any scope for precedental effect is low. (v.) ISSUE 8—The Public Interest 112. No element of the public interest other than that inherent in the other Issues raised in this case, has been sought to be established by the Council. 113. My findings on each of the other Issues deal with all facets of those Issues, including the public interest element inherent in them. 114. The two most cogent Issues involving a high level of public interest pressed by the Council in the present case concern— (i) the proposal's non-compliance with three specific requirements of the DCP; and (ii) the importance of the requirements of the DCP in promoting the Council's adopted residential strategy and objective of ensuring high amenity residential accommodation that encourages the growth within the City of permanent residents. 115. For the reasons already given, I have found that there is justification for varying two of the relevant requirements of the DCP conformably to the powers of variation expressly conferred by the DCP and that in respect of the other requirement, for which no express variation power is conferred, the proposal substantially complies with the requirement and does so in a manner that fulfils the stated strategy and objective of Part 6 of the DCP to enhance residential amenity in the City. 116. In the light of those findings, I have concluded that the granting of development consent to the proposed development will not create any adverse planning precedent (this being a separate aspect of public interest). 117. In the result, I am satisfied that the detailed requirements of Part 6 of the DCP are either (i) fully complied with; or (ii) substantially complied with. Accordingly, the present case does not involve any significant disregard of, or departure from, the detailed requirements of the DCP. 118. Moreover, I have found that the proposed development is consistent with the DCP's stated strategy and objective for enhancing residential amenity and encouraging a permanent resident population in the City. 119. For all these reasons, the proposal does not, in my judgment, involve any injury or detriment to the public interest. G. CONCLUSIONS AND ORDERS 120. For all the foregoing reasons, the appeal must be upheld and development consent be granted, subject to appropriate conditions. Those conditions have been virtually settled by the parties. Leave will be given to bring in short minutes including the full complement of conditions that are appropriate to be imposed. 121. Accordingly I make the following orders: 1. Appeal allowed. 2. Development consent granted, subject to appropriate conditions. 3. The parties shall bring into Court appropriate conditions within 21 days of today. In the event of disagreement on any of the conditions, the parties have liberty to restore the matter for my adjudication on three days' notice. 4. Exhibits be returned. 5. No order as to costs. 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.