Land and Environment Court of New South Wales CITATION : Castle Constructions Pty Limited v North Sydney Council [2008] NSWLEC 1456 APPLICANT Castle Constructions Pty Limited PARTIES : RESPONDENT North Sydney Council FILE NUMBER(S) : 11010 of 2005 CORAM: Bly C KEY ISSUES: Development Application :- demolition of existing buildings and the construction of a multi-storey commercial/residential building, building height and associated planning controls. Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 LEGISLATION CITED: State Environmental Planning Policy No. 65 North Sydney Local Environmental Plan 2001 North Sydney Development Control Plan 2002 CASES CITED: Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 1168 Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 239 DATES OF HEARING: 15, 16 and 17 October 2008 DATE OF JUDGMENT: 12 November 2008 APPLICANT Mr T. Robertson, S. C. Instructed by McLauchlan Thorpe Partners LEGAL REPRESENTATIVES: RESPONDENT Ms H Irish, barrister Instructed by Mallesons Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 12 November 2008 11010 of 2005 Castle Constructions Pty Limited v North Sydney Council JUDGMENT Introduction 1 On 7 May 2008 I gave judgment in Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 1168 being a merits appeal against the North Sydney Council's refusal of a development application for a 36 storey mixed-use (mainly residential) development at 136 - 140 Walker Street North Sydney. In short the appeal was dismissed and the development application refused because, taking into account the requirements of the North Sydney Development Control Plan 2002, the proposed building was too tall. 2 On 29 August 2008 Biscoe J gave judgment (Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 239) upholding Castle Constructions' subsequent appeal against my decision pursuant to s 56A of the Land and Environment Court Act 1979. That appeal was upheld for reasons essentially involving denial of procedural fairness and failure to consider relevant evidence and was thus remitted back to me for determination in accordance with the decision. 3 The parties have now provided additional evidence in relation to the building height issue. Taking this evidence into account together with the evidence provided in the initial hearing I have decided that, in the light of the applicable planning controls that the appeal should again be dismissed. The remittal hearing 4 When the remittal hearing began, evidence in addition to the evidence tendered at the original hearing was provided and given by: o Mr G. Mossemenear, council's executive town planner o Mr J Mills, council's three-dimensional modeling consultant o Mr J Aspinall, the applicant's architectural modeling consultant o Dr R Lamb, the applicant's visual analysis consultant o Mr T. Burns, the applicant's consultant architect and town planner 5 On behalf of the respondent council, Ms Irish submitted that the effect of Biscoe J's decision to remit the matter to me for determination in accordance with his decision, means that it is necessary for me to consider not only the particular deficiencies in my judgment but to do so in the context of a revisiting of the whole of the assessment process indicated by s. 79 C of the Environmental Planning and Assessment Act 1979. This includes all of the previously considered provisions of State Environmental Planning Policy No. 65, North Sydney Local Environmental Plan 2001, North Sydney Development Control Plan 2002 and the residents' objections. She also submitted that the concern expressed by me in my judgment in relation to the north-east corner of the building must also be included in the reconsideration. 6 Mr Robertson disagreed, submitting that because the remitter specifically requires determination in accordance with Biscoe J's decision as distinct from a remittal for re-hearing, what is necessary is the rectification of the deficiencies in my judgment and anything that flows from that. As for the matter of the north-east corner of the building this should no longer be of concern now that the applicant proposes that the building be set back an additional distance of 1.2 m from Walker Street. 7 In my opinion, for the reasons that he has given, the approach suggested by Mr Robertson is correct. 8 In the circumstances I adopt those parts of my original judgment that are not otherwise affected by Biscoe J's decision. Biscoe J's relevant findings 9 The basis for Biscoe J's decision to remit the matter can be found in the conclusions that he reached in relation to the two grounds of appeal that involve procedural fairness and consideration of relevant evidence. 10 The first at [28] of his judgment is as follows: The concept of a three dimensional umbrella generated by the notional arcs in DCP figures 1.1 and 1.2 was fundamental to the Commissioner's decision. I accept Castle Construction's submission that had there been any contention or submission by the council before the Commissioner that the proposed building did not satisfy the three dimensional arcs umbrella or any specific suggestion by the Commissioner to that effect at the hearing, Castle Constructions would have made a submission on the point including referring to Exhibit N and the evidence of Dr Lamb and Mr Byrnes. In the circumstances, I am persuaded that the Commissioner made his critical findings without giving Castle Constructions a proper opportunity to do so. 11 The second at [34] of his judgment is as follows: The council criticises that evidence (Exhibit N and the evidence of Dr Lamb and Mr Byrnes) and makes submissions as to why (if the matter were to be remitted) the Commissioner should not accept it and should adhere to the conclusions expressed in his existing reasons for judgment. It is true that, if the matter were to be remitted, the Commissioner may well be unmoved by any of that evidence or any submissions by Castle Constructions relating to it, and may adhere to the conclusions that he has already expressed. However, for present purposes, that is not the point. The point is that the Commissioner did not refer to that evidence. The Commissioner decided that the building did not fit within the three-dimensional umbrella. Yet Exhibit N and Dr Lamb's evidence, at least, were to the contrary. It is less clear whether Mr Byrnes was referring to the three-dimensional arcs or only to the two-dimensional arcs. Be that as it may, in my opinion, Exhibit N and Dr Lamb's evidence, at least, were of sufficient important to the Commissioner's decision that they should have been referred to and considered by the Commissioner. I am prepared to draw the inference that as the Commissioner did not refer to that evidence, he overlooked or failed to consider it. That may well have been because neither party referred him to it in submissions, in the circumstances discussed at [27] – [28] above. The relevant evidence 12 In relation to the findings of Biscoe J, I particularly note and take into account the evidence of Dr Lamb and Mr Byrnes and Exhibit N which evidence continues to be relied upon by the applicant in the proceedings. 13 In section 2.3 of his report Dr Lamb explained that he had studied the two notional arcs (figures 1.1 and 1.2 of the DCP) in context and detail and observed that the proposed building is well below both of the arcs. As a consequence it is compliant with the desired future character insofar as these arcs represent this character. He also explained that whilst the two arcs do not produce a three-dimensional shape, such a shape can nevertheless be inferred as being ... umbrella like but not symmetrical. The principal that emerges from these arcs is that a building should have a lower height in relation to buildings ... located more centrally under the umbrella. He concludes that the proposed building is well below ... the three dimensional surface which can be surmised to join them into an umbrella-like surface. 14 At sections 2.13 and 2.99 of his report Mr Byrnes said that the proposal is well within the heights of buildings depicted in the notional arcs that represent the desired heights for buildings in the North Sydney Centre. 15 Exhibit N includes an architect's plan showing a notional dome that was generated using a three-dimensional computer generated model based on the DCP's notional arcs. Interpretation of this model revealed that a building height of RL 175.0 would remain within the envelope created by this notional dome. My previous judgment 16 In my previous judgment at [24] - [26] I acknowledged that the superimposition of the proposed building on the two notional arc diagrams seemingly indicated comfortable compliance. Despite this I said, taking into account the building heights and massing objective in cl 28D(1)(a) of North Sydney Local Environmental Plan 2001, that the views of built form as a whole in the North Sydney Centre are very important and that …the two notional arcs need to be considered and applied together. To this end I explained that: When the arcs are combined, this produces a three-dimensional "umbrella" shaped height or skyline envelope. Even taking into account that the site is not positioned directly under either of the arcs, (that have been drawn along Miller Street and Berry Street respectively) I expect that the proposed building would project well beyond the envelope when considered in its three dimensional form. 17 In order to understand this three-dimensional form I noted at [26] the importance of the existing and potential heights of buildings at the edges of the North Sydney Centre as shown on the notional arc diagrams. At the extremities of the Berry Street notional arc, these top of building heights are in the order of RL135 m - RL145 m and at the extremities of the Miller Street arc these are in the order of RL110 m - RL125 m. 18 I then concluded at [27] - [28] that: Taking into account the location of the site vis-à-vis the North Sydney Centre boundaries and accepting as I do that these RL's are broadly indicative of a range of appropriate building heights anticipated by the DCP for these boundaries, with the top of the proposed building being at RL 162.5, I conclude that it is much too high. In this context Mr. Byrnes expressed the opinion that a better response to the notional arcs would be to reduce the building by five storeys or 15m to a top of building RL of 147.5m. (These five storeys would be removed from the middle of the building rather than of the top because the top has been carefully sculptured and would be a good element to retain). Even with such a reduction in height the three-dimensional envelope would be infringed. Unless the proposed building is lowered significantly it does not meet the requirements of the DCP and would have an unacceptable visual dominance. In my opinion this is sufficient to warrant refusal of the application. 19 I also concluded at [35] that: Considering the position of the site vis-à-vis the boundary of the North Sydney Centre this would indicate a building with a top of building RL of about 130 m... Planning controls 20 Under the North Sydney Local Environmental Plan 2001 the site is zoned Mixed Use and in this zone the proposed development is permissible with development consent. Under North Sydney Development Control Plan 2002 the site is included in the North Sydney Centre Planning Area. Being, in part, a residential flat building, State Environmental Planning Policy No 65 Design Quality of Residential Flat Development is also applicable. Also said to be relevant is draft North Sydney Local Environmental Plan - Amendment No 28. The additional evidence 21 In response to those aspects of my judgment dealing with the three-dimensional envelope generated by the notional arcs both Mr Aspinall and Mr Mills have provided a number of of different computer-generated three-dimensional models (Exhibits 41 and LL) that show how the proposed building might or might not comply with such an envelope. During the hearing these envelopes were discussed and it was decided that they needed to be modified, again utilising the notional arcs but using instead the particular relative levels associated with the built forms (depicted on the diagrams as existing or achievable buildings) that appear to have generated these arcs. 22 These relative levels were determined by Mr Mossemenear and Mr Byrnes and are shown in Exhibit 43. At the extremities of the Berry Street arc these are in the order of RL137 m - RL141 m and at the extremities of the Miller Street arc these are in the order of RL112 m - RL128 m. These relative levels very close to the levels in my judgment and referred to at [17] above. 23 Mr Aspinall and Mr Mills have now produced several computer-derived three-dimensional models (Exhibits 45, 46 and MM) that are based on the now agreed relative levels for the two notional arcs. The shape of the envelopes produced by these models vary depending upon which relative levels are adopted for the top most height of the arcs. They also vary depending upon which boundaries of the North Sydney Centre are utilised in locations that do not fall precisely under the arcs themselves and the adopted relative levels in those locations. 24 The proposed building has been incorporated into these models revealing that it variously projects beyond the envelopes by as much as 7 m. Mr Byrnes and Mr Mossemenear considered the likely margin of error in these models and Mr Byrnes estimated that this might amount to two storeys. It is to be noted however that, as a result of the now proposed additional 1.2 m setback from Walker Street, the projection beyond the envelopes is reduced. 25 On this basis the applicant submits that it is prepared to agree to a condition to limit the height of the proposed building to RL 156.8 m (the applicant's plans presently show a top of building RL of 162.5 m) and that this would comply with the envelopes produced by Mr Aspinall and Mr Mills. 26 Despite having previously agreed that five levels could be removed from the proposed building, Mr Byrnes now says that this is unnecessary; particularly taking into account that the technical breach of the latest envelopes generated by the notional arcs is marginal. Also because of the likelihood that the draft LEP that seeks to achieve the necessary non-residential additional floor space in the North Sydney central business district (as required by the Department of Planning) is likely to require taller buildings and possibly rezonings. 27 Mr Mossemenear has also changed his position in relation to the height of the building, having previously contended that no portion of the building should exceed RL 103 m. He is now prepared to accept: considering an envelope based on the two notional arcs that follows the edge or boundary of the centre, an appropriate height would appear to also be around RL 130 m. In reaching this conclusion I understand that he has taken into account the likely provisions of the proposed draft LEP. He has also taken into account the provisions of the existing DCP that have the dual role of providing a district skyline control within a regional view catchment and what he says is the more important immediate local context. 28 He did not accept that the three-dimensional envelopes generated from the notional arcs by Mr Aspinall and Mr Mills were appropriate for the determination of an appropriate maximum building height for this site. This is because the envelopes have not properly taken into account the local context and the fact that the site is at or very close to the boundaries of the North Sydney Centre. As he said in his report, in relation to a three-dimensional envelope: the edge of the envelope must be the edge of the North Sydney Centre and: If the data from the edge of the arcs and other existing buildings on the edge of the centre can provide an average height, it might be appropriate to at least consider that height as a maximum height for development particularly where the site adjoins lower scale residential development. 29 In this context he refers to a number of relative levels that are not dissimilar to those referred to in Exhibit 43: o The maximum building height (100 Arthur Street) at the edge of the commercial centre of RL of 130.15 m, o The southern end of the Miller Street arc that has an RL of 126.34 m, o The northern end of the Miller Street arc (237 Miller St) that has an RL of 125.56 m Conclusions 30 It has now become clear that with a relatively small adjustment to the height of the proposed building and taking into account the additional proposed setback from Walker Street, compliance with the three-dimensional envelopes developed by Mr Aspinall and Mr Mills would be achieved. 31 However, I am not convinced that these envelopes as constructed are sufficiently responsive to the boundaries of the North Sydney Centre. In deciding to give little weight such compliance, I have taken into account Dr Lamb's suggestion that whilst such an envelope could be umbrella shaped it would not be symmetrical. This is apparently because the perimeter of the North Sydney Centre is not circular, instead being irregular and rectilinear. Hence, whilst this consideration can be taken into account and given some weight, it does not overcome the concerns regarding visual dominance that I expressed in my earlier judgment at [27] – [28] regarding the location of the site vis-à-vis the North Sydney Centre boundaries. 32 In this reaching this conclusion, I find the evidence of Mr Mossemenear persuasive. In particular I accept the correctness of his present approach in interpreting and applying the planning controls that deal with building heights at the edge of the North Sydney Centre. As he explained, the data and buildings at the edges of the arcs can be considered as a maximum height for development where the site adjoins lower scale development, as is the case here. I thus agree that such a height can be derived from the heights determined by him and Mr Byrnes when they determined the average relative levels for the arcs at the edges of the North Sydney Centre (Exhibit 43) 33 This approach is also consistent with the conclusion in my previous judgment at [33] (that I continue to adhere to) that the site need not be treated as an area of transition between multi-storey buildings and small-scale buildings beyond the boundaries of the North Sydney Centre. In this context I do not accept that because the notional arcs project beyond the boundaries of the North Sydney Centre, allowable building heights at the boundaries should be commensurately increased, taking into account the different height controls that apply outside the centre. 34 Whilst the approach of applying an average height to the edges of the North Sydney Centre in locations other than underneath the two notional arcs is not straightforward, I nevertheless agree that this approach should attract significant and determinative weight. I have reached this conclusion notwithstanding that there is nothing in the planning controls other than the arcs themselves that would require a uniform building height around the boundaries. However, it is also important to remember that visual dominance and transition towards the boundaries of the centre are important considerations as are streetscape and topography and the area character statement in the DCP. In this context I accept that a reasonable interpretation of the notional arcs in the light of the planning controls is that there be reasonably uniform building heights around the perimeter of the centre. 35 Finally here, in terms of the North Sydney Centre's skyline it is possible, as conceded by Mr Mossemenear, that the proposed building may not offend when contemplated from distant viewpoints. I have however been persuaded by his evidence that, taking into account the planning controls, because the site is positioned so close to the boundaries of the North Sydney Centre and giving appropriate weight to the site's context, that the proposed building would be too tall. 36 At [14] in my previous judgment I dealt with the draft LEP concluding that whilst it cannot be considered to be certain and imminent it can, in the public interest, be given some weight. The council has only recently requested the issue of a s 65 certificate for an amended draft LEP hence it can still cannot be considered to be certain and/or imminent. Nevertheless the planning process and considerations associated with the draft LEP can, in the public interest be taken into account. In this regard, discussions are continuing between the council and the Department of Planning in relation to the department's requirement that that "it will be clearly demonstrated" that the draft LEP has the capacity to achieve at least 250,000 square metres of additional non-residential floor space in the North Sydney Centre. 37 In the draft LEP the council seeks to promote a height and massing of buildings that will minimise impacts on residential development adjoining the North Sydney Centre. To this end, maximum building heights are proposed. Hence, if the Department's floor space requirements are to be met concurrently with the height limits of the kind that the council is seeking, other changes to the draft LEP, possibly rezonings within the North Sydney Centre may be necessary. Another possibility may be to allow taller buildings in locations other than adjacent to the North Sydney Centre boundaries. 38 Despite the apparent difficulties associated with meeting the department's floor space requirements, I accept the likelihood that that an amending local environmental plan could be prepared that produces the built form that the council seeks to achieve in the North Sydney Centre, where that form is significantly lower at the edges and meets reasonable floor space requirements. In these circumstances it is unlikely that a draft local environmental plan would permit a building for this site that is as tall as the applicant presently seeks approval for. 39 In my previous judgment at [39] I accepted the evidence of Mr Mossemenear that an increase set back at the north-east corner of the building including the removal of the heavy frame around the balcony would be beneficial. Notwithstanding that the frame is to be retained, I now find the proposed additional 1.2 m setback to be a sufficient response to this concern. 40 In all of the circumstances and having taken into account the previous and the additional evidence I have discovered nothing that would cause me to change any of the conclusions that I reached in my previous decision in relation to building height and generally. This includes my decision not to uphold the SEPP 1 objection. I have therefore decided that the appeal should be dismissed and the development application refused. ___________________ T A Bly Commissioner of the Court ljr 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.