Land and Environment Court of New South Wales CITATION : J U Poletti (Tiles) Pty Ltd v South Sydney City Council [1989] NSWLEC 226 APPLICANT J U Poletti (Tiles) Pty Ltd PARTIES : RESPONDENT South Sydney City Council FILE NUMBER(S) : 10193 of 1989 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Aseessment Act 1979 CASES CITED: Symond v. North Sydney Municipal Council (unreported 23rd November, 1988); Legal and General Life of Australia Limited v. North Sydney Municipal Council (unreported 22nd June, 1989) DATES OF HEARING: DATE OF JUDGMENT: 08/18/1989 LEGAL REPRESENTATIVES: JUDGMENT: This is an appeal pursuant to s.97 of the Environmental Planning and Assessment Act 1979 against the determination of the Respondent refusing development consent to a development application to carry out additions at street level and at roof top level to an existing 8 storey residential flat building currently used as serviced apartments situate at Nos. 145-153 Victoria Street, Potts Point. The reasons for the Respondent's determination as notified pursuant to s.92 of the Act were as follows:- "(1) That the proposal does not comply with the car parking requirements as specified under Council's Districts Parking Control Code. (2) That the proposal exceeds the floor space ratio control for the site as specified under Local Environmental Plan No. 19. (3) That the proposal exceeds the height control for the site as specified under Local Environmental Plan No. 19. (4) That the proposal is not in scale or character with the historic area and; the granting of consent would not be in the public interest." At the time of the Respondent's determination of the application the appeal site was subject to the provisions of Sydney Local Environmental Plan No. 19 and was included within zone No. 2(g1) Residential. That plan came into force on 20th August, 1982 and applied to designated lands situate in Woolloomooloo (cl.2). Subsequent to the Respondent's determination of the development application the aforesaid plan was amended by South Sydney Local Environmental Plan No. 101 (LEP No. 101) which came into force on 23rd June, 1989. The latter Plan applies to designated lands in the suburbs of Darlinghurst, Woolloomooloo and Potts Point (cl.3) and amends the former Plan by providing that it no longer applies to land to which the latter plan applies (cl.5(2)). Under LEP No. 101 the appeal site is included within zone No. 2(b) "Residential B". This is the predominant zoning applying to land situate in the Woolloomooloo basin and is the predominant zoning of lands fronting Victoria Street north of William Street. The majority of the lands to which LEP No. 101 applies are included in designated "Conservation areas". Relevantly so far as the appeal site is concerned it is included within a conservation area involving the Woolloomooloo basin and lands on both sides of Victoria Street north of Kings Cross Railway Station. As a consequence of the Respondent's determination of the development application and of LEP No. 101 coming into force the proposed development has been amended in a number of respects and the appeal has been conducted in respect of the development application as amended. B. THE PROPOSED DEVELOPMENT AND ITS PHYSICAL SETTING The proposed development involves alterations or extensions to the existing building at street-front level and at roof level. The street-front development is in the nature of in-fill development which is possible because the existing building is set back from Victoria Street. The proposed in-fill development will be in scale with the existing terrace style developments to its immediate north and south. Victoria Street north of Kings Cross Railway Station is predominantly developed by Victorian terrace buildings two or three storeys high. There also exist some grand free-standing Victorian villas. In the past 20 years redevelopment in Victoria Street has also taken place involving the large scale Victoria Point development (comprising 3 tower buildings set back from Victoria Street behind terraces either restored original buildings or in-fill development) towards the northern end of Victoria Street. Between that development and the existing building (erected on the appeal site in the late 1970's) there is one or two other large scale modern buildings. These large scale developments carried out in the 1960's and 1970's are obviously out of character both in scale and style with the predominantly Victorian buildings in Victoria Street. They stand in stark contrast with the more recently developed and still developing in-fill development in the Woolloomooloo basin situate below and to the west of the Victoria Street development which is located on a major ridge running north/south. Viewed from the west from many vantage points in the City these modern tower developments along the Victoria Street ridgeline readily merge with other high rise developments along the Macleay Street ridgeline extending to the commercial centre of Kings Cross. The fact of these stark contrasts is to be explained by the planning history of the Woolloomooloo basin and the Victoria Street area which has undergone a major and radical change of direction in the past 15 years with the emphasis being placed fairly and squarely on residential devel opment and conservation of the existing predominantly Victorian era built form. Much of the land in the Woolloomooloo basin is publicly owned and many major redevelopments in the form of sympathetic in-fill have been carried out over the past decade by the NSW Housing Commission. The proposed in-fill development involves 5 shops at street level with 1st floor and mezzanine extensions providing additional serviced apartments. It is proposed to improve the existing reception lobby area of the serviced apartments. The roof-top additions involve two extra floors of apartments and a roof structure in a curved or arched shape as it presents to Victoria Street and to the west. The roof-top additions do not exceed the actual height of the existing lift motor room which sits prominently on the existing roof-top. The height of the existing building including the lift motor room is 32.72 metres and excluding the lift motor room the height is 24.52m. The lift motor room is located in the centre of the building towards the Victoria Street frontage of the building. It is typical of the appearance of exposed lift motor rooms in modern buildings although it is perhaps of larger dimensions than might be expected for a building of the size of the existing building. Its visual prominence is more apparent from more distant vantage points eg from the Domain and near the Art Gallery than from close range eg in Victoria Street or Brougham Street. C. THE APPEAL SITE The appeal site comprises an area of 1,065m2 having a frontage to Victoria Street of 42.75m and a depth of approximately 26m. Erected thereon is an existing building which was completed in the late 1970's and early 1980's having been approved by Sydney City Council in December 1968. Prior thereto the Council had granted development consent for a 13 storey tower building but that consent was not implemented. The development consent that was implemented was for a residential flat building for 24 x 1 bedroom flats and 24 bedsitter flats with off street parking for 82 cars. It is common ground that these flats have not been used as conventional flats providing permanent residential accommodation but cater for short stay visiting residents. The existing building contains 3 basement levels for car parking with ramp access from Victoria Street. Although there is through access to Hourigan Lane at the rear of the existing building that means of egress is not used. At ground floor level there is a restaurant with a seating capacity of 52 seats and a bar area. Because the existing building is set back from Victoria Street there is provided on site a drive-in and drive-out vehicular arrangement with a porte cochere appurtenant to the entrance and reception area. In addition to its set back from street frontage the existing building is also set back from its northern and southern boundaries. The set back from the southern boundary enables pedestrians passing the appeal site to view the City area and sky line. It is not possible to view across the set back from the northern boundary because of the existence of a high brick wall enclosing the swimming pool area located at ground level in this section of the site. D. THE STATUTORY PLANNING CONTROLS APPLICABLE TO THE APPEAL SITE Within the Residential 2(b) zoning the purposes of serviced apartments and small shops are permissible purposes of development with development consent (vide cl.10(2)) noting that the permissible purpose 'residential flat building' is defined in a manner that includes 'serviced apartments' (vide cl.6(1))). However it is common ground that the proposed development does not comply with the special provisions of LEP No. 101 relating to floor space ratio (cl.11) and height (cl.18). Again it is common ground that development consent can only be granted to the proposal if the development standards respectively prescribed by cll.11 and 18 are relaxed pursuant to the statutory power of dispensation provided by cl.7 of State Environmental Planning Policy No. 1 - Development Standards. The relevant floor space ratio for the appeal site is 2:1 and the relevant height is 12 metres. It is common ground that the existing building has a floor space ratio of 2.33:1 and the height of the existing building is 24.72m. "Height" is defined by cl.6(1) by reference to the ceiling of the 'top most habitable floor of the building' and hence excludes the height of the lift motor room. Thus the existing building itself already exceeds the prescribed floor space ratio and height development standards. Again it is common ground that the proposal involves a further considerable exceedance of both those development standards, the floor space ratio of the extended building increasing from 2.33:1 to 3.7:1 (or 2,484m2 increasing to 3,943m2 floor space) and the "height" of the extended building increasing from 24.52m to 29.12m. (The height dimension excludes the roof structure). Although there were a number of different forms of objection pursuant to clause 6 of State Policy No. 1 the form of objection ultimately relied upon is that set forth in the Annexure hereto. In order to appreciate and determine the objection in the exercise of the statutory discretion conferred by State Policy No. 1 it is necessary to refer to a number of relevant provisions of LEP No. 101. Clause 2(2) contains a statement of 'specific aims' of the plan including:- (a) to provide planning controls to ensure that development is compatible with the prevailing scale and density of the established urban environment; (b) to direct redevelopment to vacant sites and obsolescent buildings; (c) to maintain the prevailing scale and densities of existing building stock; .................................................. .................................................. (e) to conserve the quality, scale and character of areas of historic, architectural or streetscape significance; .................................................. .................................................. (g) to provide height and density controls to protect the environmentally sensitive foreshore areas visible from Port Jackson; .................................................. ................................................." Clause 10(1) sets forth the objectives of the zones created by the plan, the relevant objectives for Zone 2(b) being:- "1. Objectives of zone The objective of this zone is to maintain the residential character and environmental amenity of established residential areas. Only limited intensity small scale, non residential development will be permitted in this zone to serve the local population." Clause 20 applies to the designated "conservation areas" subclause (3) providing:- "(3) The Council shall not grant consent as referred to in subclause (2) in respect of a building or work unless it has made an assessment of - (a) the extent to which the carrying out of development in accordance with the consent would affect the historic, scientific, cultural, social, archaeological, architectural or aesthetic significance of the building or work or its site or of the conservation area within which it is situated and, in the case of a building, shall make an assessment of - (i)the scale, height, bulk and boundary set backs of the building; (ii) the pitch and form of the roof, if any; (iii) the style, size, proportion and position of the openings for windows and doors, if any; and (iv) whether the colour, texture, style, size and type of finish of the materials to be used on the exterior of the building are compatible with the materials used in the existing buildings on the site and in the conservation area; (b) whether any stylistic, horticultural or archaelogical features of the building or work or its site should be retained; (c) whether refusal of the application would pose a hazard or danger to the users or occupiers of the building or work, the public or a section of the public; and (d) whether adequate provision has been made for car parking and vehicular egress and ingress." E. DETERMINATION OF THE OBJECTION UNDER STATE POLICY NO. 1 The gravamen of the Applicant's objection is that the proposed development will alleviate the incompatibility of the existing building with the conservation area in which it is located by virtue of (i) the 'in-fill' development improving the Victoria Street streetscape and reducing the visual impact of the existing tower building on that streetscape and (ii) the roof-top additions giving the existing building a more traditional, finished appearance and rendering it more compatible with the prevailing scale density and character of the established environment. I should at once note that the Applicant at the hearing expressly urged the Court to eschew as a possible solution or outcome to the appeal, of development consent being granted to the in-fill development but being refused to the roof-top additions. This I think is an important matter because the proposed development obviously is capable of ready appraisal in its separate components as is demonstrated, for example, by the National Trust of Australia (NSW) in its response to the Respondent's reference to it of the original development application expressing its support for the proposed in-fill buildings "which continue and complete the street line" but objecting to the roof-top addition to the tower as not being "of the scale or character of this historic area, and serving only to accentuate the dominance of the tower". In its later advice to the Applicant's Architect in respect of the amended development application the National Trust maintained its support for the in-fill buildings and in respect of the roof -top additions stated:- ".......... the Trust believes that, although the form of the addition to the existing tower has not changed, the lowered height of the proposal contributes towards reducing the impact of the curved addition to Victoria Street." However in view of the manner that the Applicant has presented its case and of the basis upon which it seeks a determination by this Court it is the proposed development in toto that must be considered both in terms of cl.7 of State Policy No. 1 and of s.90 of the Environmental Planning and Assessment Act. Thus to return to the Applicant's objection under State Policy No. 1 it is clear that the objection is substantially founded upon the fact (as a relevant "circumstance of the case") that the existing building does not meet any of the objectives of the relevant development standards and in the words of the written objection "its height, floor space ratio, scale, quality and character are all incompatible with those features of the conservation area .........". This fact is clearly established by the evidence and the Respondent did not seek to put it in issue. However what the Respondent did seriously contest were the next steps in the argument undergirding the objection namely (i) that the proposed development would alleviate the incompatibility between the existing building and the conservation area in which it is located (ii) that this effect would be beneficial in terms of the express aims and objectives of LEP No. 101 and (iii) that this beneficial effect of the proposed development would justify the subst antial additional exceedances of the relevant development standards imposing floor space ratio and height controls and restrictions. Whereas it may be accepted that the objection as formulated effectively invokes the dispensational jurisdiction and power conferred by cl.7 of State Policy No. 1 cf. Symond v. North Sydney Municipal Council (unreported 23rd November, 1988) and Legal and General Life of Australia Limited v. North Sydney Municipal Council (unreported 22nd June, 1989). I have concluded as a matter of discretion that that dispensation ought not be granted in favour of the development application. My reasons for so concluding can be briefly stated as follows - (i) Although the proposed in-fill development has a significant effect of alleviating the incompatibility between the existing building and the relevant conservation area (particularly in terms of streetscape) not only does the proposed roof-top development have no alleviating effect, it increases the height and bulk of the tower in absolute terms and in a manner that diminishes the alleviating effect of the in-fill development. In so concluding I accept that in architectural terms the roof-top of the existing building would be enhanced. I also accept that there is some success in architectural terms of relating the proposed roof-top of the existing building to the proposed in-fill development. Despite these architectural advantages the tower building is actually increased in bulk and scale (including height) and this feature perpetuates, if not reinforces, the obvious incompatibility of the existing building. The overall alleviating effect is therefore in my opinion, not significant. (ii) Although it may be accepted that any alleviating effect of the proposed development is beneficial in terms of the aims and objectives of LEP No. 101 the extent of that benefit is correspondingly reduced by my finding that the alleviating effect of the development proposed considered in toto, is not significant. Moreover the proposal not only involves some beneficial effects but also involves detrimental effects, namely the visual effect of the increased bulk and scale of the tower on the dwellings situate below it in Brougham Street. This adverse effect of the proposal does not promote the stated aims of LEP No. 101 "to ensure that development is compatible with the prevailing scale and density of the established urban environment" (cl.2(2)(a)) and "to maintain the prevailing scale and densities of existing building stock" (cl.2(2)(c)), noting that the "prevailing" scale and density of existing development in the Woolloomooloo Conservation Area (including Victoria Street) is that of Victorian terraces 2 and 3 storeys in height. (iii) The net planning benefit of the proposal that I have found to be established is not of a sufficient nature and degree as to justify the substantial relaxation sought in respect of the relevant development standards imposing floor space ratio and height controls. Those standards have been in force since 1982 when Sydney LEP No.19 came into force and they have been recently reapplied by LEP No. 101. When the entire provisions of LEP No. 101 are considered it is apparent that the 'floor space ratio' development standard and the 'height' development standard are the principal means employed by the instrument to achieve the specific aims of the plan - see especially cl.2(2)(c), (b) & (e). Accordingly their relaxation pursuant to the dispensational power conferred by State Policy No. 1 requires substantial justification especially in a case of an objection, such as in the present case, based upon the ground that the proposed development promotes the express aims and objectives of the Plan. Finally I would add that the nature of the planning benefit in the present case is not, in my opinion, as obvious or beneficial, as was the benefit of the positive conservation of an item of environmental heritage found in Symond cf cl.21(2) of LEP No. 101. CONCLUSION The foregoing conclusion means that it is unnecessary to consider the development application in terms of s.90 of the Environmental Planning and Assessment Act because, without the benefit of the dispensation sought under State Policy No. 1, it is conceded that the proposed development can not in law be approved. Accordingly I make the following orders:- 1. Appeal dismissed. 2. Development consent refused. 3. No order as to costs. 4. Exhibits to be returned. 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.