Zone Developments Pty Ltd v City of Sydney Council [2014] NSWLEC 1015

Land and Environment Court New South Wales

Medium Neutral Citation: Zone Developments Pty Ltd v City of Sydney Council [2014] NSWLEC 1015 Hearing dates: 29, 30 October 2013 Decision date: 31 January 2014 Jurisdiction: Class 1 Before: Pearson C Decision: See paragraphs [72]-[73] Catchwords: DEVELOPMENT APPLICATION - Conversion of commercial/retail units to residential units - Amenity of future and existing residents - Impact on public plaza Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development South Sydney Local Environmental Plan 1998 Sydney Local Environmental Plan 2012 Cases Cited: MacDonald v Mosman Council (1999) 105 LGERA 49 PDP (Darlinghurst Apartments) Pty Ltd v City of Sydney Council [2005] NSWLEC 41 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 Zhang v Canterbury City Council (2001) 115 LGERA 373 Category: Principal judgment Parties: Zone Developments Pty Ltd (Applicant) City of Sydney Council (Respondent) Representation: Counsel Ms S Duggan SC (Applicant) Mr P Clay SC (Respondent) Solicitors Ms K MacDonald, Baron & Associates (Applicant) Ms K Ridling, City of Sydney (Respondent) File Number(s): 10608 of 2013

Judgment 1This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of consent to Development Application D/2013/842 made on 21 June 2013 by Zone Developments Pty Ltd (Zone) for alterations and conversion of commercial/retail units to ten residential units at 423 Bourke Street Surry Hills (the site). 2The site is also known as 417-445 Bourke Street, and is known as the "Henry Building". The Henry Building is part of, and located at the western side of, the redevelopment of the former St Margaret's Hospital, approximately 200m south of Taylor Square. The primary frontage of the Henry Building is to the east facing onto the public plaza within the St Margaret's development. The Henry Building is at the northern side of the St Margaret's redevelopment area, at the pedestrian entry into the public plaza from Little Bourke Street and Church Lane. The Henry Building comprises three storeys with ground level commercial/retail space with residential apartments on the first and second floors. Entry to the upper floors is by five stairways accessed from the public plaza. The basement area provides space for services, amenity facilities and parking which is accessed via a ramp at the southern end of the building. To the west of the site is the boundary with Crown Street Public School. 3The ground floor commercial/retail units are presently split into three tenancies. The proposal is to convert the ground floor retail/commercial units to ten, one bedroom residential units. Each residential unit is proposed to have an entry and the bedroom on the eastern side facing the plaza; bathroom and kitchen in the centre; and living and dining at the rear, western side, opening on to a courtyard area. Unit 3 is proposed as an adaptable studio apartment, with level access from the plaza. The floor level of the other nine units is raised approximately 900mm above the level of the plaza. The entry to units 1 - 8 is proposed from a raised deck, of varying dimensions, while the entry to units 9 and 10 (at the northern end of the Henry Building) is proposed to be at the level of the plaza with internal stairs up to the floor level of the apartment. There is screening landscaping proposed facing the plaza. 4The issues in dispute relate to the amenity of the future residents of the proposed ten residential units, and of the residents on the upper floors of the Henry Building; and impacts on the character, viability and vitality of the public plaza and surrounding area.