Land and Environment Court of New South Wales CITATION : West Apartments v City of Sydney Council [2008] NSWLEC 70 APPLICANT West Apartments Pty Ltd PARTIES : RESPONDENT City of Sydney Council FILE NUMBER(S) : 10908 of 2007 CORAM: Brown C KEY ISSUES: Appeal :- modification of consent - floor space ratio - height LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 21,22/01/08 EX TEMPORE JUDGMENT DATE : 22 January 2008 APPLICANT Mr P McEwen SC SOLICITORS Blackstone Waterhouse Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr M Baird, barrister SOLICITORS City of Sydney Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 22 January 2008 10908 of 2007 West Apartments Pty Ltd v City of Sydney Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by the City of Sydney Council (the council) of an application to modify Development Consent D/2002/971 granted on 26 March 2006 for the construction of a mixed use development at 485-501 and 503-511 Wattle Street, Ultimo (the site). 2 South Sydney Council granted Development Consent D/2002/971 prior to the adjustment of local government boundaries that resulted in the site coming under control of the City of Sydney Council. Background 3 Seven s 96 applications have been considered since the original approval with the most recent approval being D/2002/971/F granted on 2 May 2006. This allowed the construction of two mixed use buildings, the retention of the Briscoe heritage building, three retail units, 143 residential units, 2,053.5 sq m of commercial space and 146 on-site car parking spaces. The modification application 4 The subject s 96 modification application (D/2002/971/G) proposes the following modifications: (a) construction of a new additional basement level; (b) relocation of the gym from basement level 3 to basement level 3 and an increase in size; (c) internal alteration of the dwellings resulting in an increase in building footprint; (d) increase in the height of building A between 250 mm and 350 mm and an increase in the height of Building B by 2.85 m; (e) new roof terraces to Buildings A and B; (f) four new two storey two bedroom apartments included in what was previously a void area in Building B; (g) reduction in size of retail units to allow for plant and storage space; (h) new garbage rooms at ground level fronting the through site link; (i) modification of the public domain area adjusting ground levels and design; (j) modification of the unit mix with the conversion of three bedroom units on levels 14 and 15 to one bedroom units with void areas; (k) deletion of the underground link between the Briscoe building and the underground basement area of Building B; (l) modification of condition B(2) - Building Damage Deposit; (m) the modification of condition B(5A) - Floor Space Bonus Deed of Agreement; (n) modification of condition B(87) Site Remediation; and (o) new waste and plant rooms in the Briscoe building. 5 Development of the site is under way and is no longer in accordance with the most recent modification approval in D/2002/971/F. Building A is partially completed but without the tower component and Building B has reached its ultimate height but only through the concrete framework. No internal fit-out or façade work has been undertaken. The height of Building B reflects the height sought in the modification application before the Court. The site 6 The site comprises two parcels of land with frontages to Wattle Street to the east and Blackwattle Lane to the west. It has been cleared except for the three storey Briscoe building. Construction of the proposal is currently under way. The Briscoe building is a brick warehouse built in around 1901 in the Federation warehouse style and is listed as a heritage item. The site is close to central city, Darling Harbour and Cockle Bay. The surrounding area comprises a mix of residential, recreational, educational and commercial uses exhibiting significant variations in scale, height and form. 7 Development to the east of the site across Wattle Street is dominated by tertiary education buildings including to the north-east, an 8 storey building owned by the University of Technology Sydney and directly to the east is the TAFE site with buildings ranging from 3 to 5 storeys. To the west of the site across Blackwattle Lane is the mixed use Quadrant development that ranges in height from 3 storeys to 15 storeys. On the southern side is a 7 storey mixed use development. The issues 8 Not all proposed modifications are in dispute. The council filed a Statement of Facts and Contentions that raised 23 issues. Following the submission of further plans and the agreement by the applicant to conditions sought to be imposed by the council in relation to Unit mix (Contention 8), setback, (Contentions 9 and 10), site remediation (Contentions 11, 12 and 13), the public domain (Contentions 14 and 15), flooding (Contentions 16, 17 and 18), access issues for the retail units (Contention 19), insufficient information (Contentions 20, 21 and 22) and occupation certificate (Contention 23) were not pressed. 9 The remaining outstanding contentions relate to the floor space ratio (FSR) (Contentions 1, 2, 3 and 4), and height and scale (Contentions 5, 6 and 7). The evidence 10 Mr Harvey Sanders provided evidence for the applicant and Ms Bridget Boyes provided evidence for the council on the remaining active issues. Floor space ratio 11 Mr Sanders and Ms Boyes addressed the issue of FSR in a joint statement. The FSR of the original proposal was stated at 3.25:1. This was consistent with the FSR requirements in cl 2.2, Pt E of South Sydney DCP 1997 including a bonus FSR of 0.25:1 available through cl 4 Pt C of DCP 1997. On closer examination, the calculation of the FSR was found to exclude some areas that would normally be required to be included in the calculation based on the definition of gross floor area. The areas excluded include some of the internal staircases and some of the lobby areas. 12 As I understand, the agreed position of Mr Sanders and Ms Boyes was that if the same method is used in the calculation of the FSR for this application as was done in the original proposal, the FSR would be unchanged at 3.25:1. If the assessment is carried out strictly in accordance with the definition of gross floor area, the original approval would have an FSR of 3.52:1. Using this basis for the assessment of the modification application, the FSR would be 3.59:1 or an increase of 0.07:1. 13 There was some disagreement between Mr Sanders and Ms Boyes over the areas to be included as gross floor area. Mr Sanders accepted that it was appropriate to include an additional 490 sq m whereas Ms Boyes considered a further 145 sq m should be included. These areas included void areas on level 15, the ground floor entrance level of Building B and the external rooms located within the fire stairs at level 1 of Buildings A and B. 14 I note that the objective of the FSR control in DCP 1997 is: To control the floor area of new development to ensure its intensity respects and reflects the overall built form and does not detrimentally affect the amenity of the area. 15 In considering the evidence of Mr Sanders and Ms Boyes, I am satisfied that the increase in floor space is not so significant that it would warrant the refusal of the application. Even if the worst case scenario was adopted (and I am not satisfied that all the areas suggested by Ms Boyes should be included) the increase in floor area is not significant compared to a development that proposes some 14,400 sq m of floor area. 16 In my view, it would also be unreasonable to ignore the fact that the development was originally seen to comply with the FSR requirements when approved in 2003, although this may have been incorrectly calculated. In numerical terms, an increase in FSR of 0.07:1 is not significant and in my view is still consistent with the objective of the FSR standard in DCP 1997. Height 17 The issue of increased height was also raised in the joint report of Mr Sanders and Ms Boyes with the general agreement that the increase of 250 to 350 mm in Building A was not a matter that was unacceptable. The increase of 2.85 m of Building B was, however, seen by Ms Boyes as being unacceptable from both a general streetscape and character perspective and also from the impact on the Briscoe building. Ms Boyes saw the additional height and bulk created by the additional four units as making the proposal unacceptable. Ms Boyes describes the additional height as dominating the Briscoe building. The National Trust and council's heritage planner support this conclusion. 18 Mr Sanders acknowledges that the additional height and the additional units add to the bulk but not in any material way. He states that the additional height is not the result of additional floor area but greater floor to ceiling heights that seek to improve the amenity of the proposed units and the need to raise the ground floor levels above the designated flood level. 19 The question to be answered is whether an additional 2.85 m in height, that is from RL33.205 to RL36.05, is unacceptable. In my view the answer is clearly no. With the benefit of a site view, I accept while Building B exceeds the height requirements in DCP 1995, contextually the proposed height is acceptable. Building B has buildings to the south and west that are higher and I agree with Mr Sanders that the additional height will be largely unnoticeable from most viewing locations. Building A will obscure Building B with the exception of a limited corridor between this building, and the Briscoe building. From Wattle Street, the Briscoe building obscures Building B for pedestrians walking along this street. Building B will be visible further to the north along Wattle Street although with any redevelopment of this site to the north, views of Building B are likely to be significantly reduced. 20 The additional four units are only visible from Blackwattle Lane and I agree with Ms Boyes that these units will not impact on the streetscape from this location. I also accept that the impact on the Briscoe building is largely immaterial given the existing approval. I cannot accept an additional 2.85 m in height impacts so significantly on the heritage significance of the Briscoe building that this would be a valid or sound reason to refuse the modification application. 21 In coming to this conclusion I have considered the relevant matters in cl 22(f) and (h) and cl 24 of South Sydney Local Environmental Plan 1998. Conditions 22 Of the conditions that remain in dispute, I accept the applicant's submission that the reference to a Restrictive Covenant in condition 94 should be deleted. The condition of consent requiring that the approved storage spaces in the basement levels are not be used as car parking spaces is sufficient and can be enforced through proceedings in the Land and Environment Court, if necessary. Orders 23 The Orders of the Court are: 1. The appeal is upheld. 2. Application DU/2002/971/G for the modification of Development Consent DU/2002/971 for the partial demolition of existing improvements and the construction of a mixed use development at 485-501 & 503-511 Wattle street Ultimo is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibit A. ___________________ G T Brown 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.