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. The site and site history 5The site is within a mixed use area with residential buildings interspersed with retail, commercial, entertainment, food and drink, and community uses. Opposite the St Margaret's development on the east side of Bourke Street is the Beresford Hotel, a late night entertainment venue, and a mix of residential apartment buildings and terrace houses. 6The public plaza immediately in front of the Henry Building covers an area of approximately 900 sqm and has public seating and a number of trees. The plaza is owned by Zone, subject to an easement for public access to the Public Areas identified on the plan "for the purpose of passive recreation and thoroughfare". The easement extends to the outer eastern edge of the stairwells to the upper level units. Security and maintenance of the Public Areas is the responsibility of Zone. 7The St Margaret's development as approved in development consent DA-489/2001 granted on 24 October 2001 is comprised of five principal buildings: two converted from the former use as a hospital (the Alba building and the former Chapel) and a further three newly constructed (Jasper, Ivy and Henry Buildings). The Alba building has a Woolworths supermarket on the ground floor and basement. The former Chapel, with primary frontage on to Bourke Street, has an art gallery and retail at ground floor and first floor, and an artists' workshop. The Jasper building with frontages on to Bourke Street and the plaza has ground floor retail, cafe and restaurant uses. The Ivy building has retail at ground floor with primary frontage to Bourke Street; a medical centre on the first floor with access from the plaza; and a restaurant at the rear of the building with frontage onto the plaza and a through-site link to Church Street. At the date of the view, there was one commercial occupant of the ground floor of the Henry Building with frontage onto the public plaza, a hairdresser. 8The following summary of the site history is based on the Statement of Evidence of Mr Jones (exhibit 2). The hospital ceased operations in 1998. A Masterplan was prepared on behalf of the then owners in 1998 (the Original Masterplan) and submitted to the Council together with a submission for rezoning to Mixed Uses 10 under the South Sydney Local Environmental Plan 1998 (the 1998 LEP). The Masterplan outlined three options: all re-usable buildings retained; heritage buildings retained; or mix of existing and new buildings. In 1999 the Council conditionally endorsed the Masterplan with no particular resolution on a preferred option. The site was acquired by Zone, and a new Masterplan prepared in 2000 (the Amending Masterplan) was submitted to the Council, proposing 210 residential units and 3,700sqm of commercial/retail space; an increase in the permissible FSR; demolition of all buildings except the hospital building, the Chapel, and the Jesmond Street terrace; erection of three new buildings; and provision of 3,050 sqm to the public domain including an open space "core" in the centre of the site. The Council conditionally endorsed the Amending Masterplan, and the South Sydney Development Control Plan 1997: Urban Design (the 1997 DCP) was amended to enable the site to have a base FSR of 2.4:1 and an additional FSR bonus of 0.85:1 subject to provision of public domain works. 9In May 2001 Zone applied for development consent in accordance with the Amending Masterplan. The development application included public domain works, being the provision of the public plaza; publicly accessible through site links and open space; integrated public art program; a community facility; and a contribution for the fit out of the community facility. The applicable planning controls were the 1998 LEP and the 1997 DCP. Development consent was granted on October 2001. Condition 45 of the consent required a future development application to be submitted for the specific use of the retail and commercial tenancies and the establishment of seating in the public domain. Evidence 10The hearing commenced on site with a view. Evidence was given on site by two objectors, owners of units in the Henry Building and in the Jasper Building. Mr Barber expressed concerns about the loss of vibrancy in the community, and noted that while he will not be directly affected his neighbours will be. Mr Preshaw stated that the community feel will be lost with the change at ground level, and that he has concerns about noise for existing residents, and the facilities for bikes. Written submissions made to the Council are in evidence (exhibit 8). The submission on behalf of the owners corporation of the Henry Building stated that there was not an in principle issue with the conversion, however raised concerns as to acoustic impacts on the use of the private open space at the rear of the proposed residential units; architectural treatment of the eastern façade, and acoustic issues for new residents with bedrooms adjacent to the plaza; suggested flipping the living rooms to the eastern edge of the building to enable long term flexibility for conversion to small commercial/retail use in the future; and landscape treatment to the public plaza. The submission on behalf of the operator of the Beresford Hotel raised concerns as to future acoustic amenity for residents from external noise sources including the hotel. Other written submissions raised concerns about noise from the use of the outdoor courtyard areas at the rear of the proposed residential units; acoustic amenity of the proposed residential units in particular for the bedrooms proposed for the eastern edge of the building; impact on potential future commercial uses; safety and security; retention of the mixed use character; and whether the viability of alternative commercial use had been adequately tested. One written submission supported the conversion, subject to there being conditions imposed to ensure high quality building standards and design and management of use of outdoor areas. 11Expert planning evidence was provided on behalf of Zone by Mr Lindsay Fletcher and on behalf of the Council by Mr Philip Jones. Mr Fletcher and Mr Jones provided individual Statements of Evidence (exhibits E, 2) and a joint report (exhibit 3) and gave oral evidence. Expert evidence on acoustic issues was provided on behalf of Zone by Dr Renzo Tonin and on behalf of the Council by Mr Matthew Harrison. Dr Tonin and Mr Harrison provided individual Statement of Evidence (exhibits F, 4) and a joint report (exhibit 5). They were not required to give oral evidence. 12Ms Kate MacDonald, solicitor for Zone, provided a Schedule detailing occupancy and rental arrears for the commercial/retail tenancies for the period 2005-2013 (exhibit H). Planning controls 13The site is in the B4 Mixed Use zone under the Sydney Local Environmental Plan 2012 (the LEP), which commenced on 14 December 2012, and the proposed development is permissible with consent. The aims of the LEP are provided in cl 1.2 and relevantly include: (2) The particular aims of this Plan are as follows: ... (c) to promote ecologically sustainable development, ... (e) to encourage the growth and diversity of the residential population of the City of Sydney by providing for a range of appropriately located housing, including affordable housing, (f) to enable a range of services and infrastructure that meets the needs of residents, workers and visitors, ... (h) to enhance the amenity and quality of life of local communities, (i) to provide for a range of existing and future mixed-use centres and to promote the economic strength of those centres, (j) to achieve a high quality urban form by ensuring that new development exhibits design excellence and reflects the existing or desired future character of particular localities, ... 14The objectives of the B4 zone are: · To provide a mixture of compatible land uses. · To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. · To ensure uses support the viability of centres. 15Clause 2.3(2) of the LEP requires the consent authority to have regard to the zone objectives. 16Clause 6.21 applies to development involving the erection of a new building or external alterations to an existing building. Clause 6.21(3) provides that development consent must not be granted to development unless in the opinion of the consent authority the proposed development exhibits design excellence, and cl 6.21(4) specifies the matters to which regard must be had in considering whether development exhibits design excellence: (4) In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters: (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, (c) whether the proposed development detrimentally impacts on view corridors, (d) how the proposed development addresses the following matters: (i) the suitability of the land for development, (ii) the existing and proposed uses and use mix, (iii) any heritage issues and streetscape constraints, (iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) the bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network, (x) the impact on, and any proposed improvements to, the public domain, (xi) the impact on any special character area, (xii) achieving appropriate interfaces at ground level between the building and the public domain, (xiii) excellence and integration of landscape design. 17The site is within the Bourke Street North Heritage Conservation Area (C59) under the LEP. 18The Sydney Development Control Plan 2012 (the DCP) came into effect on 14 December 2012, and applies to the site. At section 1.1 the DCP states that its purpose is to supplement the LEP and provide more detailed provisions to guide development. At section 1.6, it states that the DCP repeals specified DCPs and policies, and replaces "deemed DCPs, formerly known as master plans or development plans, for land in the area to which this development control plan applies". 19The Introduction to Section 3 General Provisions in the DCP states: The provisions in this section apply to all development to which this DCP applies, except where it is clear that they are not relevant to a particular development type or use. The objectives and provisions describe design outcomes for the private domain, but also set out requirements for the treatment of the public domain and public domain interface. These requirements cover landscaping, heritage, transport, access and other areas where private development can make positive contributions to high quality public domain outcomes. The order in which the provisions appear do not represent any particular order of priority or importance. The provisions are to be read in conjunction with other sections of this Development Control Plan and Sydney LEP 2012. 20Relevant definitions include: Active Frontage means street frontages where there is an active visual engagement between those in the street and those on the ground floors of buildings. Frequent building entries that face and open towards the street, transparent street frontages, quality materials and refined details, and mixed land uses will make streets more diverse and attractive for pedestrians and increase the perception of safety and encourage higher levels of pedestrian activity. Public Domain refers to areas of the City in which access to and use of is available for any member of the public. Public domain typically includes parks, plazas, footpaths and streets. Public domain elements of the City are typically controlled by the City of Sydney. 21Section 3.2 Defining the public domain includes 3.2.2 Addressing the street and public domain, and 3.2.3 Active frontages: 3.2.2 Addressing the street and public domain A person's experience of the city will be formed by the public domain as well as private developments which adjoin the public domain. It is important that development adjacent to the public domain is attractive, comfortable, safe, functional and accessible for all. The public domain and pedestrian environment should be characterised by excellence in design, high quality materials and well integrated public art. Objectives (a) Ensure that development contributes to the activity, safety, amenity and quality of streets and the public domain. (b) Present appropriate frontages to adjacent streets and public domain in terms of scale, finishes and architectural character. (c) Provide legible and accessible entries from the street and the public domain. (d) Reinforce street edge conditions that significantly contribute to the characteristics of a heritage conservation area. (e) Reinforce Central Sydney's strong definition of streets and the public domain aligned with property boundaries. (f) Ensure that in areas outside of Central Sydney new development relates to neighbouring buildings that define the street and public domain. (g) Minimise blank walls at the ground level. 22The relevant Provisions include: (1) Buildings are to be designed to positively address the street. (2) Buildings are to be designed to maximise the number of entries, visible internal uses at ground level, and include high quality finishes and public art to enhance the public domain. ... (4) Ground floor tenancies and building entry lobbies on sites not flood affected are to, where possible: (a) have entries at the same level as the adjacent footpath or public domain; (b) have finished floor levels no greater than 500mm above or below the adjacent footpath or public domain entry on sites with a cross fall of less than 1 in 10; (c) have finished floor levels no greater than 1.2m above the adjacent footpath or public domain on sites with a cross fall of greater than 1 in10; (d) provide opportunities for direct surveillance of the adjacent street or public domain at maximum intervals of 6m; and (e) be elevated up to 1.0m above ground level for privacy for ground floor residential uses. ... (7) Residential developments: (a) are to have a street address and provide a direct line of sight from a street to the principal building entry or entries. Where a development comprises a number of buildings with a variety of orientations, a major part of the overall development is to face the street; (b) are to be designed and laid out so that every 6m a dwelling, communal space or other high use space provides opportunities for direct surveillance of the adjacent street or public domain; and (c) are to provide individual entries directly from the street to any ground floor dwellings next to the street. ... 23Section 3.2.3 Active frontages provides: 3.2.3 Active frontages A diverse range of activities should be provided at street level to reinforce the vitality and liveliness of the public domain. Active frontages to streets are encouraged so activities within buildings can positively contribute to the public domain. Such uses include retail, customer service areas, cafes and restaurants, and other uses that involve people. Outdoor dining areas may also contribute to active street frontages in appropriate circumstances. A well designed street frontage is important for pedestrian amenity and includes attractive building entries, window displays, display cases, artworks, well detailed architecture, facade modulation, clear glazed windows, and visually permeable security screens. Objectives (a) Ensure ground floor frontages are pedestrian oriented and of high design quality to add vitality to city and village streets. (b) Provide fine grain frontages at ground level. (c) Provide continuity of ground floor shops along streets and lanes within Central Sydney and other identified locations. (d) Allow for active frontages in other non-identified locations to contribute to the amenity of the streetscape. (e) Encourage frequent building entries that face and open towards the street. Provisions (1) Active frontages are to be provided in the locations nominated on the Active frontages map. (2) Active frontages are to contribute to the liveliness and vitality of streets by: (a) maximising entries or display windows to shops and/or food and drink premises or other uses, customer service areas and activities which provide pedestrian interest and interaction. Generally, active frontages on the ground floor of a property boundary are to be provided in accordance with Table 3.1 Ground floor active frontages; (b) minimising fire escapes, service doors, plant and equipment hatches; (c) providing elements of visual interest, such as display cases, or creative use of materials where fire escapes, service doors and equipment hatches cannot be avoided. (d) in Central Sydney, providing three floors of retail (basement, ground and first floor) in the blocks bounded by George, Market, King and Castlereagh Streets as shown in Figure 3.7 Central Sydney retail core. Where this is not practicable, the design of new buildings should enable the conversion of these floors to retail at a later stage; and (e) providing a high standard of finish for shopfronts. (2) Generally, a minimum of 70% of the ground floor frontage is to be transparent glazing with a predominantly unobstructed view from the adjacent footpath to at least a depth of 6m within the building. (3) Generally, foyer spaces are not to occupy more than 20% of a street frontage of a building in Central Sydney and no more than 8m of a street frontage elsewhere. (4) Active frontages are to be designed with the ground floor level at the same level as the footpath. (5) Driveways and service entries are not permitted on active frontages, unless there is no alternative. (6) Enclosed glazed shopfronts are preferred to open shopfronts, except for food and drink premises which are encouraged to provide open shopfronts. (7) Security grilles may only be fitted internally behind the shopfront and are to be fully retractable and at least 50% transparent when closed. (8) Through-site links or arcades are to have a clear width of 3-6m and a minimum clear height of 1.5 times the width or 6m, whichever is greater. 24The Active Frontages Map referred to in 3.2.3 (1) includes that part of the St Margaret's development fronting Bourke Street, but not the Henry Building. Table 3.1 Ground floor active frontages specifies requirements for locations nominated on the Active Frontages Map within and outside Central Sydney; for locations outside Central Sydney not nominated on the Active Frontages Map (which includes the site) there are no requirements specified. The introduction to Table 3.2 ground floor design states that it "should be used as a general guide when designing the ground floor of a building", and that the preferred design of ground floors for all uses are Grade A-Active and Grade B-Friendly: Grade A-Active Small units, many doors (15-20 doors per 100m) Large variation in function No blank walls and few passive units Lots of character in façade relief Primarily vertical façade articulation Good details and material Grade B-Friendly Relatively small units (10-14 doors per 100m) Some variation in function Few blind and passive units Façade relief Many varied details 25Section 4 Development Types includes provisions for Residential Flat, Commercial and Mixed Use Developments in section 4.2. Section 4.2.3.10(1) states that development should "provide a pleasant outlook, as distinct from views, from all apartments". Section 4.2.3.11 (1) provides that a Noise Impact Assessment may be required for commercial and retail uses which may affect the acoustic privacy of adjacent residential use, and (2) that where necessary a residential development is to include acoustic measures to reduce the impact of noise from external sources. 26Section 4.2.5.4 provides: 4.2.5.4 Residential uses on the ground and first floor Objectives (a) Design ground floor apartments with a similar appearance as two storey terrace houses. (b) Balance ground floor dwelling privacy with surveillance to the street. (c) Activate the street with individual building entries. (d) Create a fine-grain and varied rhythm of built form along the street. (e) Create opportunities at the street level for planting or landscaped areas and visually extend open areas at the lower levels. Provisions (1) Ground floor residential uses are to be provided with a minimum of: (a) 3m primary building setback, except where a zero lot line has been established by existing adjacent development; (b) 4m setback from the site boundary to the glass line enclosing an internal space at the ground and first floor; and (c) 3m wide deep soil landscape setback as a private front garden. The garden may be located up to 1m above the street level. (2) Ground floor private open space facing the street is to be provided as a deck up to 2m deep. (3) Ground floor level is to be a maximum of 1.2m above the adjacent public domain level with 0.8m to 1m preferred to allow a good level of privacy and passive surveillance. On a sloping site step the ground floor levels to maintain an optimal relationship to the street for each dwelling. (4) Sills or opaque treatments to ground floor windows are to be a minimum of 0.8m above ground floor level to provide privacy. (5) Ground floor dwellings that face the street are to have individual entries to the street. (6) Balustrades to ground floor decks are to be predominantly open, with preference for contemporary steel palisade types. (7) A predominantly open contemporary steel palisade fence up to a maximum of 1.4m high is to be located on the site boundary. (8) Minimise the size of first floor balconies where possible, to ensure adequate light reaches ground floor living areas. 27Section 6 Specific Sites includes objectives and provisions for each of the sites identified on Fig 6.1 Specific Sites map. At section 6.1 it states that for the sites covered by Section 6, the objectives and provisions "are a translation of controls of repealed DCPs (including masterplans) and relevant development consents". The St Margaret's development is not included in Section 6. 28Section 79C(3A) of the Act applies to this development application, and provides: (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards-is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards-is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria. 29The parties' representatives were in agreement that in the context of the issues raised in this appeal, s 79C(3A) reinforces the approach adopted in Zhang v Canterbury City Council (2001) 115 LGERA 373 to the task of the consent authority and the Court on appeal in considering, as required by 79C (1)(a)(iii) of the Act, the provisions of the DCP. The proper approach to that task is that while not being determinative, the DCP must be considered as a "fundamental element" or a "focal point" of the decision-making process. The issues in dispute between the parties, and the focus of much of the planning evidence, concerned whether the proposed development achieves the objectives of the relevant provisions in the DCP. 30State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) applies. The aims and objectives in cl 2 include improving the design quality of residential flat development, including (3)(d) "to maximise amenity, safety and security for the benefit of its occupants and the wider community". SEPP 65 provides ten Design Principles, including Principle 7: Amenity: 15 Principle 7: Amenity Good design provides amenity through the physical, spatial and environmental quality of a development. Optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural ventilation, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas, outlook and ease of access for all age groups and degrees of mobility. Consideration 31The Council raised four contentions, that the proposal would (1) adversely affect the amenity of the future residents of the Henry Building; (2) adversely affect the amenity of the residents on the upper floors of the Henry Building; (3) adversely impact on the character, viability and vitality of the public plaza and surrounding area; and (4) create activity and an opportunity for overlooking from the rear of the building to the Crown Street Public School. Contention 4 was not pressed. Amenity for future residents 32The Council contended that the proposal would adversely affect the amenity of the future residents because of the location of the apartments directly adjacent to the public plaza; the residents of the proposed units are likely to suffer noise and disturbance from conflicting uses and associated activity in the plaza and along Bourke Street; the proposal creates a poor relationship between the proposed residential use and the public domain which is not ameliorated by the proposed raised planter beds with bamboo screening; and the proposal is not able to meet the numerical requirements of 4.2.5.4 of the DCP, the aims of the LEP, the objective of SEPP 65 or Design Principle 7. 33The issue of the impact of noise from activity in the plaza and traffic noise from Bourke Street on the amenity of the proposed bedrooms was addressed by Dr Tonin and Mr Harrison. Both conducted noise monitoring in two locations, one behind the Henry Building and the other on the eastern side (Dr Tonin's location being closer to the southern side of the St Margaret's development than Mr Harrison's monitor). Mr Harrison noted (5.1, exhibit 4) noise levels within the plaza area that were generally consistent with the recommended acceptable limits during the daytime and evening, and measured night-time (after 10.00pm) ambient noise levels exceeding the recommended acceptable limit by 7 dBA. Mr Harrison noted that noise levels within the bedrooms would achieve internal design limits of 45 dBA with windows open and marginally exceed (1 dBA) the criterion (35 dBA) for the windows closed scenario, which he noted could be mitigated by the inclusion of thicker glazing. I note that while Mr Harrison referred to the criteria in the Central Sydney DCP 1996, those criteria are the same as those at 4.2.3.11(7) of the DCP. Dr Tonin's conclusions were similar, noting (at [36], exhibit F) that the internal noise level for the daytime (52 dB) meets the criterion, at 47dB (assuming open windows), the night-time criterion can only be satisfied with closed windows and mechanical ventilation. Based on video recording of a pedestrian count over four evenings between 10.00pm to 1.00am, Dr Tonin noted (at [39], exhibit F) that most passers-by were simply traversing the plaza with few occasional stops, and the plaza "could not be classified as a place of congregation with the potential to create significant on-going noise". In their joint report (exhibit 5) Dr Tonin and Mr Harrison agreed that incorporation of 6.38mm laminated glass and acoustic seals on the east facing bedroom windows, and provision of mechanical ventilation to enable those windows to be kept closed if necessary, would address the Council's concerns. I accept the agreed evidence that these measures would provide appropriate internal amenity for the occupants of the proposed residential units. The proposed conditions, or the plans, should be amended to specify the agreed requirements for laminated glass and acoustic seals. 34The planning experts agreed that the amenity concerns are confined to acoustic disturbance, visual privacy, daylight to the bedrooms and outlook from the bedrooms. In relation to the acoustic issues, they deferred to the acoustic experts. The planners agreed that based on the amended plans, units 1-8 have appropriate internal amenity; they disagreed in relation to units 9 and 10. 35Mr Jones identified his concerns relating to internal amenity in his Statement of Evidence (exhibit 2) as being interlooking and privacy; poor levels of natural light to the bedrooms; and poor outlook. Mr Jones considered that the intention behind the setback provisions at 4.2.5.4 of the DCP is to provide a transition from public to private domain and to ensure a reasonable level of privacy is achieved for occupants, and the requirement for building setbacks is also relevant to the consideration of surveillance of the street. In his opinion there is insufficient transition and separation between the public and private space. The ground floor of the building is recessed creating a first floor overhang, and the combination of the plant screening, the overhang and the orientation of the building will result in low levels of natural light to the bedrooms. The outlook from bedrooms would also be poor due to the proximity of the plant screening necessitated by the relationship with the public plaza. Mr Jones agreed that the amendments to the plans now reflected in exhibit C attempt to address these concerns, however in his opinion they do not overcome them. In oral evidence Mr Jones considered that the bedroom in unit 10 is too close to the plaza for privacy. Mr Jones calculated the window sill to be approximately 1.7m above the level of the plaza. Mr Jones' concern was with the potential for people to look in, and his preference was for the front wall of unit 10 to be setback 1.5m, which would give a greater separation between the public walkway and the bedroom uses. Mr Jones had similar concerns for the internal amenity of unit 9. 36Mr Fletcher did not agree, noting that while it would be rare for a bedroom in older style housing to be this close, at approximately half a metre, it is to a pedestrian plaza and not a public street which would have vehicular traffic. Mr Fletcher did not see privacy as a problem because of the raised floor level, the sill height at 800mm, and the fact that the public domain is not as actively used as Bourke Street. He considered that setting back the wall would increase the ability for people to look in. 37Section 4.2.5.4 of the DCP provides specific requirements for ground floor residential uses. All the proposed units (other than unit 3) meet the height of ground floor level above the adjacent public domain level preferred "to allow a good level of privacy and passive surveillance" (4.2.5.4(3)), and the sill height at a minimum of 0.8m "to provide privacy" (4.2.5.4(4)); and each unit has an individual entry to the public plaza (4.2.5.4(5)). The adjacent site has a zero lot line, and so 4.2.5.4(1)(a) does not apply. Provisions 4.2.5.4(1)(b) and (c) are not satisfied. 38The planners were in agreement that the landscaping and setback proposed for units 1-8 provide acceptable amenity for the occupants of those units, and I accept that evidence. The issue is with units 9 and 10, which are at the northern end of the Henry Building. Mr Jones' concern with unit 10 extended to unit 9; Mr Fletcher agreed that the relationship of unit 9 to the plaza is essentially the same as that for unit 10, other than having a greater setback from the public area of the plaza. 39The distance between the window of unit 10 and the public domain as now proposed in exhibit C is approximately 500mm, and the proposed planter is between 200-400mm wide. The window sill would be approximately 1.7m above the level of the public plaza. While it is correct that the unit fronts public domain that is a pedestrian plaza, rather than a street or vehicle thoroughfare, unit 10 is located at the corner of Little Bourke Street and Church Lane; on the morning of the view (as confirmed by the photograph in exhibit 12) a delivery vehicle was parked (illegally) immediately outside what is proposed to be unit 10. I accept that the occupant of the bedroom in unit 10 could obtain visual privacy, for example by internal screens, and that the height of the sill above the plaza level would reduce direct interlooking from the plaza. I am not satisfied, however, that given the proximity of this unit to both pedestrian activity from use of the public plaza as a through site link in addition to its use for the ground floor commercial and retail premises and for entry to the upper level units, and to the vehicle use of Little Bourke Street and Church Lane, that the measures required to achieve a reasonable level of privacy inside the bedroom would be consistent with achieving the objective (b) in 4.2.5.4 of a "balance" of privacy with surveillance to the street. 40Mr Jones was of the opinion that the front wall of unit 10 should be setback a further 1.5m to obtain greater separation between the public walkway and bedroom uses. The internal dimension of unit 10 would be 66.3 sqm which would meet the requirements of the Residential Flat Design Code. Mr Fletcher agreed that this may be important if it allowed more landscaping, however in his opinion privacy is not a problem because of the raised floor level and sill height and the fact that the public domain is not as actively used as Bourke Street; it would make little or no difference to noise received from the pizza restaurant; and it would increase the ability for people to look in from the plaza. 41The Council presses for the imposition of conditions (draft conditions 3 and 4) requiring a minimum distance of 1.5m between the landscaping green edge and the front elevation of each apartment to ensure an adequate transition between the public plaza and the residential apartments, and requiring that landscaping in front of each apartment be a minimum depth of 0.5m. Based on the plans in exhibit A, the distance between the window of unit 9 and the plaza is approximately 1m. Imposition of conditions 3 and 4 as proposed by the Council would require additional setback of the front wall of both units 9 and 10, and increase the total setback from the publicly accessible area of the plaza to approximately 3m for unit 9 and 2.5m for unit 10. 42Drawing 1302-DA200A (exhibit A) shows the first floor overhang along the eastern side of the Henry Building. Based on that plan, the proposed planters for units 1-8 would be located outside the overhang area, as would the planters for units 9 and 10 if retained in their position as shown on exhibit C, with additional setback provided as required by proposed condition 3 between the planter and the front wall of these units. Mr Fletcher gave qualified support to an additional setback of 1.5m if this would achieve additional landscaping. The Council's proposed conditions would achieve that, and provide additional private space between the units and the public plaza. Having concluded above that the objectives of 4.2.5.4 of the DCP would not be met by units 9 and 10 as presently proposed, I accept the Council's position, which is supported by Mr Jones, and agree that conditions 3 and 4 should be imposed as proposed by the Council. 43Subject to how the modification to the front of units 9 and 10 was achieved, the proposed units would appear, based on the plans in exhibits A and C, to meet 4.2.5.4(2). None of the units would meet the 3m wide deep soil landscape setback required by 4.2.5.4(1)(c) of the DCP. In considering whether in the circumstances of this application it is appropriate not to require compliance with the numerical requirement of the DCP, I accept that it is relevant that the units adjoin a public plaza rather than a street where greater separation from vehicular traffic would be desirable. As noted above, the screening landscaping as proposed would not be affected by the first floor overhang. I accept the agreed position of the planning experts that units 1-8 achieve appropriate internal amenity, and I am satisfied that the modifications to units 9 and 10 would provide appropriate amenity for those units. Subject to those modifications, I am satisfied that the proposed development achieves the objectives of section 4.2.5.4 and that it is appropriate in the circumstances of this site not to require compliance with the numerical requirements. Based on the agreed evidence of the planning and the acoustic experts, I am satisfied that with the modifications to units 9 and 10 the proposed development is consistent with Principle 7 of SEPP 65. Amenity for residents on the upper floors of the Henry Building 44The Council contended that the proposal would open up the rear of the Henry Building and introduce activity and noise owing to the location of the private courtyards at the rear of each of the proposed units, and would adversely impact the amenity of the existing residents in the apartments above especially in bedrooms at the rear of the building. Mr Harrison noted (at [42], exhibit 4) that the interior layout for the proposed apartments is a reverse orientation to the existing apartments on the floor levels above, resulting in the location of external courtyard areas below the bedroom windows of the upper level apartments. Mr Harrison concluded that given the low night-time background sound levels received at the rear of the building, the design limit for noise intrusion should be restricted to the lower end of the recommended scale in order to ensure acoustic amenity is preserved, and that the predicted levels of noise intrusion due to courtyard activity would exceed the 40 dBA internal limit when raised or loud voices occur below. Dr Tonin (exhibit F) recommended an angled glazed acoustic blade awning which together with the upwardly oriented windows of the levels above would result in the required 6 dB noise attenuation. In their joint report Dr Tonin and Mr Harrison agreed that provision of an angled glazed acoustic blade awning extending to the midway point of the courtyard terrace would address these concerns, and they agreed on a design for this awning (exhibit B). I accept that evidence, and agree that condition 2 should require compliance with that awning design. 45Condition 2 as proposed by the Council requires the applicant, prior to the issue of a Construction Certificate, to provide details of the glazed rear awnings to be approved by the Council's Area Planning Manager. The applicant presses for this approval to be by the Certifying Authority. Given the significance of potential noise impacts on the residents of the upper levels, in particular as identified in the submissions made to the Council, and the need to ensure appropriate design and construction of the awning for providing the noise attenuation required to avoid those adverse impacts, I agree with the Council that approval of the final detail should be a matter for the Council. Impact on the Public Plaza and surrounding area 46The Council contended that the proposal would adversely impact on the character, viability and vitality of the public plaza and surrounding area. The evolution of the development concept for the St Margaret's development envisaged active ground floor uses across all five of the principal buildings addressing the primary street frontage onto Bourke Street and the public plaza at the core of the development, and at every stage, from the Original Masterplan and rezoning report, the Amending Masterplan and the application for development consent, included retail/commercial space at ground floor level; the proposal is not in accordance with the objectives of the B4 zone, does not meet the aims of the LEP, is inconsistent with cl 3.2 of the DCP, fails to meet the objects of the Act, is not in accordance with crime prevention principles, would result in a poor relationship between the proposed apartments and the public plaza and thus not represent design excellence in accordance with cl 6.21 of the LEP, and would harm the vitality of the public domain space and detract from the public plaza. 47The Council accepts that the Masterplan is not prescriptive for or against residential uses on the ground floor, however it submits that an understanding of the embryo of the redevelopment of St Margaret's, and the identification of the creation of the public plaza, is important in understanding and applying the planning controls. The Council submits that the LEP and DCP should be applied understanding that there is a public domain with vitality and vibrancy that will not be achieved with the conversion, and that what is sought by the planning controls is not residential development. While there will be 10 entrances to 10 apartments adjoining the public plaza, there will be reduced activity because it is residential and as a consequence the plaza will be less attractive and less likely to be used as public domain. Considering the external appearance of the building and the interface with the public domain, the Council submits that the use of planters which are required for visual privacy operates so as to demonstrate that the use is private rather than public, which will diminish the quality of the public domain. Residential development is permissible, however it will operate to discourage rather than encourage use of the public domain. 48Zone submits that with the adoption of the DCP the Masterplan in effect ceased to exist, and the absence of the St Margaret's development from Section 6 of the DCP means that the Masterplan has no further work to do. Even if the Masterplan is still relevant, it does not dictate uses, but expresses a desire for the redevelopment; the public benefits were fundamental to the redevelopment, and none of those benefits were linked to having commercial uses at ground floor. Zone submits that while the preference of the Council and the applicant is for commercial uses, that has been pursued and has not provided an outcome that is beneficial. 49The expert planners disagreed as to the relevance of the masterplans, and whether the proposal will impact on the character, viability and vitality of the public plaza. Mr Fletcher was of the opinion that if the Masterplan concept for redevelopment was intended to be sustained as part of the planning controls for the site then the provisions for commercial ground floor uses for all five of the principal buildings should have been incorporated into the LEP or DCP, and the Masterplan is no longer of relevance in assessment of the application. Mr Jones was of the opinion that the masterplans are a relevant consideration under s 79C of the Act. The Original Masterplan included references to encouraging active uses at ground floor to buildings fronting the public space, and made a nexus with bonus floor space; that nexus was continued through the Amending Masterplan and into the development application; the development application obtained a significant increase in the overall development floorspace which was justified through a package of public benefits, a substantial element of which was the public domain space with the plaza as its core and the through site links. In Mr Jones' opinion the intention was always that the public domain space would be activated by the surrounding ground floor retail/commercial space that would closely interact with the public space. 50Mr Fletcher was of the opinion that the proposal is consistent with the planning controls and the Act. Should market dynamics shift to demand more non-residential floor space, a future development application could change the use to commercial or office uses. The proposal will replace long vacant redundant commercial space with residential accommodation that will provide additional population in the locality to support the remaining viable commercial activities. In his opinion the relationship between the private space at the front of each dwelling and the adjoining Public Area has the potential to be more attractive than a frontage to a busy street and footpath; the proposed delineation between private and public space will clarify the legal status of the space, and activity and interactivity within the plaza would not be affected if the delineation is clear. He considered a residential use to be an active use, and commercial or retail use would not necessarily be more active; the hours would be different, and a café would have greater activity during the hours it is open. Mr Fletcher agreed that it would be more appropriate and preferable to have viable commercial operation at the ground floor level. 51Mr Jones' evidence was that the original design and concept for St Margaret's has been translated into the current planning controls, evident in the identification of the site in the B4 Mixed Use zone and within the Local Centre Area under the DCP which allows late night trading hours in the immediate area including the pizza restaurant and for the Beresford Hotel. Conversion of the units would harm the vitality of the public domain space by removing the opportunity for activity and interactivity, and the privatising of the ground floor would result in a perception of the public space also being privatised and adversely affect existing and future commercial opportunities in the St Margaret's development. The proposal is inconsistent with cl 3.2.3 of the DCP which states that a diverse range of activities should be provided at street level. Mr Jones was of the opinion that the proposal for raised planter beds with bamboo screening would not meet the principles of surveillance and territorial reinforcement for crime prevention. 52In oral evidence, Mr Jones accepted that the Original Masterplan did not specify that ground floor uses must be commercial or retail, and that in the Council's adoption of the Masterplan there was no requirement for ground floor commercial or retail uses, or that the bonus floor space was dependent on that. Mr Jones agreed that, on balance, compared with the present position, residential uses would have more vitality. 53During the course of its assessment of this development application the Council requested information as to vacancies, marketing, and rentals (exhibit 8, p 140). For the purposes of these proceedings, Zone's solicitor provided a Schedule of Occupancy and Rental Arrears/Payments from 1 January 2005, based on her firm's records (exhibit H). Based on exhibit H, the commercial/retail units have since 2005 been tenanted in varying combinations of units and sub-units. The Schedule shows the first occupancy of any of the units from 1 October 2005; no tenants in November-December 2006; and full occupancy for the period between 1 September 2007 to 1 August 2009. The type of business has varied. Shops 5B and 6A were occupied by a chicken take away shop from 1 December 2005 to1 November 2006; shop 6B by a women's accessories and small homewares shop from 1 December 2005 to 1 August 2006; and shop 7A by a giftware/homeware shop from 1 October 2005 to 1 July 2006. Shops 4, 5 and 6A were occupied by different restaurants from 1 January 2007 to 1 December 2012 (apart from a period of two months in June and July 2012). Shops 6B, 7A, 7B and 9 were occupied for restaurant use from 1 September 2007 to 1 August 2009, and again from 1 November 2009 to 1 March 2013. 54The Schedule identifies rent free periods, and periods where the lessee is paying rent and the rental payments are not in arrears by more than one month's rent, during periods when the units were occupied. Based on that information, I accept that there have been periods when the shops have been occupied but rent is not payable during a rent free period, or when rent is in arrears; periods when all, some or none of the units have been occupied; and that there was full occupancy between 1 September 2007 to 1 August 2009. While the Schedule records no occupants after February 2013, it was observed on the view (and confirmed in photographs annexed to Mr Jones' Statement of Evidence exhibit 2) that as at the date of the view, there was one occupant, a hairdresser. 55The Schedule does not provide information as to the reasons for non-occupancy or for rental arrears. While some of the written submissions raised concerns that past difficulties in obtaining tenants may have been attributable to the size of the units or the rent charged, there was no economic or other expert evidence provided to the Court as to the viability of the ground floor units for retail or commercial purposes, either past or prospective. At its highest, the evidence before the Court supports a finding that commercial/retail uses have been pursued by Zone since 2005, and that for whatever reason the commercial/retail units have not achieved full occupancy or an outcome regarded by Zone as appropriate. 56The first issue to address in considering the impact of the proposed conversion of those units to residential units on the public plaza is the weight to be given to the Original Masterplan and Amending Masterplan in assessment of this development application. The Original Masterplan (exhibit 9, p1) included recommendations that active uses be included in ground level frontages (at 3.5), and that active uses incorporated at ground level be allowed as a bonus to floor space (at 3.8). The Amending Masterplan made a number of changes to the approach adopted in the Original Masterplan, and was the basis on which the 2001 development application was made, as outlined in the Statement of Environmental Effects submitted with that development application (exhibit 9, p 241), and as accepted by Mr Jones in his Statement of Evidence (at 7.8). 57In the context of the development of the proposals for redevelopment of the St Margaret's hospital site, the conditional endorsement by the Council in February 2001 of the Amending Masterplan (and the consequent amendment of the 1997 DCP) would be relevant to considering the public interest as required by s 79C(1)(e) of the Act: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195. However, in my view the replacement in 2012 of the planning controls applicable at the time of determination of the 2001 development application, and in particular the express provision at 1.6 of the DCP that it replaces masterplans, together with the absence of provisions for the St Margaret's development in Section 6 of the DCP, mean that the specific provisions of the Masterplan have little if any work to do in the determination of this application. Further, even if it were still relevant to determination of this application, when the Amending Masterplan and the associated documents are considered, it would not dictate that the ground floor of the Henry Building remain for retail/commercial uses. 58The Amending Masterplan noted (exhibit 9, p 76) that the major aspects of the Original Masterplan proposals for the redevelopment of St Margaret's were a public place formed in the middle to the site linked to the existing streets, retention and adaptive re-use of the hospital and chapel, vehicular access from Bourke Street and all parking underground, a "mix of uses with predominantly residential with a range of supporting and compatible retail and commercial uses and possible temporary accommodation", and "active uses at ground level are encouraged". The Amending Masterplan considered the three different building envelope configurations provided in the Original Masterplan, and noted (exhibit 9, p 92) that "the character and vitality of the public place is the start point in defining the design objectives of the New Masterplan". The Components of the Development at 6.5 (exhibit 9, p 93) describes the building that is now the Henry Building as an element of the amended building envelope group in the following terms: Building 2. The western boundary building. With the demolition of the north wing Public Hospital and the Lavinus Nolan building, the new western building contains the public space, activating this long edge condition with ground floor retail uses. The Southern end contains the carpark entry ramps, while the northern end contains the loading dock and garbage room facilities. Levels 1 to 3 are proposed commercial studios linked to upper level living spaces. This commercial/residential form sits on the retail base creating an articulated building form. Entrance to the upper levels is via two cores, the northern with a lift entrance. 59Land uses are described at 6.6 as "an overlapping of mixed commercial, retail and potential community uses from the basement to level 2, with levels 3 upwards accommodating residential space". Part 6.13 Safety and security identifies the urban design principles incorporated in the reconfiguration of building envelopes to create a safe public domain, including "through site links that allow for visual connection along their entire length", "public space that is activated by ground floor uses and building entries 24hrs a day", and "public space and through site links that are overlooked by the residential component". Part 7.0 considers Floor Space issues, including at 7.4 consideration of the FSR control under the 1997 DCP, which included a bonus floorspace incentive for provision of improvements to the public domain. The Amending Masterplan noted at 7.4 (exhibit 9, p 105) that the ability to implement environmental innovations into the development "is dependent on the quantum of development possible on the site and the correct configuration of building massing on-site which will result in the economies of scale necessary to implement them", and further, that "one of the major aims of this development proposal is to integrate the development into the surrounding community and provide active and community uses at ground level together with streetscape improvements", which included improved pedestrian paths, potential allocation of space for community function, increasing the width of Church Lane, and remaking the Bourke Street pathway. The package of improvements for a floor space bonus was to provide "public open space, through site links and public art in the development". 60The Council documents in evidence include correspondence concerning the details of the public domain works proposed as part of the bonus floor space package, including a letter from Council dated 2 February 2001 (exhibit 9, p169) and a response dated 5 February 2001 (exhibit 9, p 172) included details of the plan for the plaza, proposed easement for public access, through site links (including the transition from the shared zone to Little Bourke Street and Church Lane), public art, and the library location plan; a Minute Paper for the Planning and Development Committee 13 February 2001 (exhibit 9, p 206); and a Council resolution endorsing the recommendation of 13 February 2001 dated 21 February 2001 (exhibit 9, p 227). The latter document refers to the "upper level residential units" and "ground floor commercial and retail uses" in relation to the Henry Building (exhibit 9, p 229) in the context of the design of the building at the Crown Street Public School boundary. The floorspace bonus of 0.85:1 is to be available subject to the provision of a public plaza with through site links and open space, an integrated public art program, and a multi purpose or other community facility. 61None of these documents link bonus floor space with provision of retail/commercial uses on the ground floor, but rather with the proposed public domain works including the public plaza. 62The Statement of Environmental Effects submitted with DA 489/2001 (exhibit 9, p 241) discussed retail/commercial facilities at 5.6.4, which were, for Building 2 (Henry Building) (at p 36) "to be located on the ground level, with an eastern outlook" into the plaza, to be "continuous over the length of the building footprint, but subdivided along the building façade alignment by the residential access stairs". It is clear from this document, and the reference at 6.5 of the Amending Masterplan to ground floor retail uses, that the intention was to provide for ground floor retail/commercial uses. However, the language is not prescriptive, and, as Mr Jones agreed in oral evidence, is consistent with the role of a masterplan to provide a statement of intent. 63The Amending Masterplan, and the background to the development application approved in 2001 for redevelopment of the St Margaret's site, establish a clear preference for ground floor commercial and retail uses. The evidence of the expert planners was that commercial and retail uses would be preferable, Mr Fletcher accepting in oral evidence that if those uses were viable he would not support this application. However, the central focus of consideration of the development application the subject of this appeal must be the applicable provisions of the present planning controls, including the provisions of the DCP. The proposed use for residential apartments is permissible, as a form of development not specified as prohibited, in the B4 Mixed Use zone under the LEP. The DCP makes specific provision for residential development on ground and first floors in section 4.2.5.4; section 3.2.2 of the DCP includes specific requirements for residential developments adjoining the public domain; and the objectives and provisions for active frontages in section 3.2.3 do not preclude residential development. 64The objectives for addressing the public domain provided in section 3.2.2 of the DCP include providing development that "is attractive, comfortable, safe, functional and accessible to all", and that development presents appropriate frontages to the public domain "in terms of scale, finishes and architectural character". The Council raised no issue as to finishes or architectural character, the primary concern being the proximity of units 9 and 10 to the publicly accessible part of the plaza. I am satisfied that the amended design in exhibit C, subject to the imposition of conditions 3 and 4 as discussed above, would be consistent with the objectives of 3.2.2, and that the proposal would meet the requirements in 3.2.2(2) of maximising the number of entries and visible internal uses at ground level, and the specific provisions for residential developments in 3.2.2(7). 65The site is not on the Active Frontages Map, and no specific requirements are specified. Considering the generally applicable provisions for active frontages in 3.2.3, the focus of attention was on the statement that active frontages are encouraged "so activities within buildings can positively contribute to the public domain", and that such uses include retail, customer service areas, cafes, restaurants and "other uses that involve people". Mr Jones accepted that residential uses "involve people". While I accept his evidence that residential uses would involve less activity than retail or commercial uses, I also accept Mr Fletcher's evidence that retail or commercial uses generally generate activity only when they are open, while residential uses would generate activity at other times. Both experts agreed that residential uses would generate more vitality than the present situation. 66While it was common ground that commercial or retail uses would be preferable for the site, I accept that this has been pursued. I am satisfied that residential uses would generate activity, which while different in timing and nature to that generated by commercial or retail uses, would assist in reinforcing the vitality and liveliness of the public domain as sought in 3.2.3. Based on the amended plans in exhibit C, I am satisfied that the proposal meets objective 3.2.3 (a) of pedestrian orientation, and (e) by providing building entries facing the plaza, and that it provides the variation in function, façade relief, and details encouraged in Table 3.2 for active frontages. 67Clause 6.21(4) of the LEP provides the matters that must be considered in determining whether the proposed development exhibits design excellence. No issue was raised as to the design, materials or detailing of the proposal. The central issues in dispute relate to how the proposed development addresses the matters listed in cl 6.21(4), in particular its relationship to and impact on the public domain. I accept that the provision of screening planters and the identifiable private space between the planters and the front of each units will indicate private use as opposed to public use. However, on the evidence before the Court these areas are outside the Public Areas identified in the easement permitting public access for passive recreation and thoroughfare, and the delineation between private and public space would not of itself impact on the utility of the public space including the outdoor seating or its use as a thoroughfare. I agree with Mr Fletcher that the increase in activity referred to above would improve the quality and amenity of the public domain (cl 6.21(4)(b)), and that the proposal would not detract from the overall utility of the plaza as public domain (cl 6.21(4)(d)(x)). I am also satisfied that with the imposition of conditions 3 and 4 and modifications to the front of units 9 and 10, given the agreement that the proposal for units 1-8 is appropriate, that the interfaces between the units and the public domain are appropriate (cl 6.21(4)(d)(xii)). Conditions 68The parties reached agreement on conditions other than conditions 2, 3, 9, and 32. Conditions 2 and 3 are considered at [42] and [45] above. 69Condition 9 relates to restriction on use of the development. The Council presses for the imposition of condition 9 (a) requiring use as permanent residential accommodation only and not for the purpose of a hotel, motel, serviced apartments, private hotel, tourist accommodation or the like other than in accordance with the LEP; (b) registration of a restrictive covenant stating that the development can be used only for permanent residential accommodation and restricting any change of use of the ground floor; (c) providing that no more than two adults occupy each bedroom and that no bedroom contain more than two beds; (d) restricting the total number of adults residing in one unit so as not to exceed twice the number of approved bedrooms; (e) requiring residential tenancies to be for at least three months; (f) prohibiting short term or share accommodation; and (g) restricting use of car parking spaces for parking of vehicles related to residence in the unity with which the space is associated. Zone accepts condition 9(g); and in the alternative proposes a modified form of condition 9(a). I accept the Council's submissions that condition 9 is drafted to respond to a general problem with short term accommodation in the City of Sydney, and that it is appropriate to impose condition 9 (c), (d), (e) and (f) as proposed by the Council. To the extent that condition 9(a) simply restates the obligation to obtain a further development consent for a change of use, it would appear to be unnecessary. However, I accept that a statement that the consent permits residential use, and not alternative forms of short term accommodation, would assist in informing a prospective purchaser of the need to ensure that any alternative use would need to comply with the LEP and the Act. Condition 9(a) should be amended to delete the words "permanent", to delete "or the like" and substitute "or other similar short term accommodation", and to include a reference to the Act after the reference to the LEP. 70I do not agree with proposed condition 9(b). It is not appropriate to impose a condition that would attempt to restrict a change of use or limit the ability to obtain development consent in the future (MacDonald v Mosman Council (1999) 105 LGERA 49), or to duplicate the law providing for enforcement of the provisions of the Act (PDP (Darlinghurst Apartments) Pty Ltd v City of Sydney Council [2005] NSWLEC 41). The only proper basis for imposing condition 9(b) would be to provide notification to prospective purchasers of the restriction on the approved use. However, I am not satisfied that this is necessary given the reference in condition 9(a) to short term accommodation whether in the nature of serviced apartments or otherwise. A prospective purchaser would be aware, on reading the consent and carrying out the requisite searches in the conveyancing process, of the approved use for residential apartments and the need for compliance with the LEP and the Act. The proposed residential units are on the ground floor adjoining the public plaza, and any non-compliance would be readily apparent. In my view the Council has sufficient protection in the conditions of consent and in the provisions of the Act, and I am not satisfied that it would be appropriate in this case to impose condition 9(b). 71Condition 32 requires protection of trees in the public plaza during demolition and construction. The Council presses for the addition of a requirement that details of the method of protection be submitted and approved by Council; Zone opposes this, or in the alternative, submits that approval should be by the certifier. I agree with the Council that protection of the existing trees is a significant issue, in terms of the contribution of the landscaping to the amenity of the public plaza. Zone, as the owner of area occupied by the public plaza, has an interest in retaining and maintaining the trees and other plantings. I agree that the requirement for approval of details of the method of protection before the issue of a Construction Certificate should be imposed, however I am, not persuaded that this could not be managed by the certifier, with appropriate notification to the Council. Conclusion 72I am satisfied that subject to the changes to units 9 and 10 that would be required by proposed conditions 3 and 4, and subject to the provision of the agreed measures to ensure acoustic privacy for residents of the proposed units and in the upper level units, the proposed development achieves the objectives of the relevant provisions of the DCP, and satisfies cl 6.21 of the LEP. It provides additional residential accommodation in the mixed use redevelopment of St Margaret's in an accessible location, and is consistent with the objectives of the B4 zone under the LEP. I am satisfied that it is appropriate to grant consent to the proposed development, as proposed in the plans in exhibit C and subject to the changes noted above, and subject to the conditions as discussed. In the interests of certainty, it would be preferable for the plans to be amended to reflect those changes, and to incorporate the specifications agreed between the acoustic experts for the rear acoustic awning and for glazing and treatment of the front windows. Conditions 9 and 32 need to be amended to reflect these reasons. 73I will make directions in consultation with the parties for the provision of amended plans and conditions to enable final orders to be made in chambers. Linda Pearson Commissioner of the Court 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. Decision last updated: 03 February 2014