Land and Environment Court New South Wales Medium Neutral Citation: Stamford Property Services Pty Ltd v City of Sydney & Anor [2015] NSWLEC 1189 Hearing dates: 29, 30 January, 2, 3, 4 February 2015 Date of orders: 28 May 2015 Decision date: 28 May 2015 Jurisdiction: Class 1 Before: Pearson C and Smithson AC Decision: 1. The appeal is dismissed. 2. Development Application D/2013/2011 for the retention and adaptive re-use of the former Department of Health building; partial retention and re-use of part of the Sir Stamford Hotel building; construction of a 19 storey tower building accommodating residential apartments, retail/commercial floor space and basement car parking spaces; and ancillary landscaping and public domain improvement works, at 93-97 Macquarie Street, Sydney, is refused. 3. The exhibits are returned except for Exhibits A, C1, C13 and M1. Catchwords: DEVELOPMENT APPLICATION – Retention and adaptive re-use of heritage building – Construction of residential and commercial tower – Whether exhibiting design excellence – Competitive design process - Whether site specific development control plan required – Building setbacks – Height control - Special Conservation Area – Impacts on heritage items – View impacts – Internal amenity – Privacy Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Heritage Act 1977 Interpretation Act 1987 City of Sydney Act 1988 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development Central Sydney Local Environmental Plan 1996 Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 Al-Kateb v Godwin (2004) 219 CLR 562 APT Peddle Thorp & Walker Pty Ltd v Sydney City Council [1997] NSWLEC 186 Bettar v Council of the City of Sydney [2014] NSWLEC 1070 Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338 CIC Insurance v Bankstown Football Club Ltd (1997) 187 CLR 384 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69 Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 Csillag v Woollahra Municipal Council [2011] NSWLEC 17 Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 GTAA Pty Ltd v South Sydney City Council (2001) 117 LGERA 51 Hallgath v Australian Community Pharmacy Authority (No 2) (2011) 197 FCR 15 Marina Bay Developments Pty Ltd v Pittwater Council [2007] NSWLEC 41 Momcilovic v The Queen (2011) 85 ALJR 957 One.Tel Ltd v Australian Communications Authority (2001) 180 ALR 521 Owners of Strata Plan No 3397 v Tate (2007) 70 NSWLR 344 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Stamford Property Services Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1206 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 Tran v Commonwealth (2010) 271 ALR 1 Zhang v Canterbury City Council (2001) 115 LGERA 373 Category: Principal judgment Parties: Stamford Property Services Pty Ltd (Applicant) Council of the City of Sydney (First Respondent) Mulpha Australia Pty Ltd (Second Respondent) Representation: Counsel: Mr A Galasso SC (Applicant) Mr P Clay SC (First Respondent) Mr N Hutley SC with Mr C Ireland (Second Respondent) Solicitors: Norton Rose (Applicant) City of Sydney (First Respondent) Addisons (Second Respondent) File Number(s): 10627 of 2014 Judgment Introduction 1. Stamford Property Services Pty Ltd (Stamford) appeals pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by the Council of the City of Sydney (the Council) of a development application (D/2013/2011) for development at 93-97 Macquarie Street, Sydney (the site) involving the retention and adaptive re-use of the former Department of Health building; partial retention and re-use of part of the Sir Stamford Hotel building; construction of a 19 storey tower building accommodating 102 residential apartments, 1,296sqm of retail/commercial floor space and 65 basement car parking spaces; and ancillary landscaping and public domain improvement works. 2. The site is Lot 12 DP 1197140, known as 93-97 Macquarie Street, located on the western side of Macquarie Street between Albert Street and Bridge Street. The site has frontage to Macquarie Street and to Albert Street. Occupying the majority of the site is the Sir Stamford Hotel, a 10 storey building constructed in 1991, with 101 guest rooms and 109 basement parking spaces. The basement car parking is currently operated as a commercial car park, accessed from Albert Street. At the northeastern corner of the site is the heritage listed 4 storey brick building constructed between 1896 and 1898, known as the former Health Department building. 3. The site is situated on the north east corner of the block bounded by Albert Street to the north, Macquarie Street to the east, Bridge Street to the south and Phillip Street to the west. The location of the site is shown marked in red on the following aerial photograph (Figure 2 in Ex C1): 1. The site has an area of 1,611sqm and is burdened by a number of easements that benefit adjacent properties, including: * a right of carriageway that runs in parallel to the western boundary of the site, benefiting the Intercontinental Hotel; and * an easement approximately 3m in width for light and air along the southern boundary of the site benefiting the adjacent property to the south, Transport House. 1. The topography of the site falls from the southeastern corner of the site on Macquarie Street towards the northwestern corner on Albert Street with a change of level of approximately 6.8m. 2. The block in which the site is located includes a number of buildings dating from the early 19th century, including buildings and sites listed on the NSW State Heritage Register and buildings listed as items of local heritage significance. Buildings listed on the State Heritage Register include the Justice and Police Museum (4-8 Phillip Street) immediately adjacent to the rear (west) of the site, the former Treasury Building which comprises part of the Intercontinental Hotel (at 117-119 Macquarie Street), and the former Health Department building on the site being the corner of Macquarie Street and Albert Street. The Royal Botanic Gardens and The Domain are also heritage listed and are to the east extending across the Cahill Expressway to a grassed area fronting Macquarie Street immediately opposite the site. Transport House, a 5 storey commercial building immediately adjacent the site to the south at 99 Macquarie Street, is listed as a heritage item of local significance. 3. On the northern side of Albert Street opposite the former Health Department building (and therefore the site) is the Royal Automobile Club (RAC) (89-91 Macquarie Street), listed on the State Heritage register. On the southern side of Bridge Street are the Chief Secretary's Building (121 Macquarie Street) and The Astor apartments (123 Macquarie Street), that are also heritage listed. 4. The proposed development is "major development" as defined in s 31 of the City of Sydney Act 1988 and, pursuant to s 40(1) of that Act, the Central Sydney Planning Committee (CSPC) has the function of determining the application. The proposed development is "integrated development" as defined under s 91 of the Act, as an approval under s 58 of the Heritage Act 1977 is required. 5. Pursuant to s 39(2) of the Land and Environment Court Act 1979 (the Court Act), the Court in determining the appeal exercises the functions and discretions of the consent authority. Section 39(6A) of the Court Act provides that the Court may determine the appeal whether or not the consent authority has obtained the general terms of approval of each relevant approval body, in this instance the Heritage Council; is not bound to refuse an application for development consent because an approval body has decided not to grant its approval or has failed to advise whether or not it will grant its approval; and may determine the appeal even though a development consent granted as a result of the appeal would be inconsistent with the general terms of approval of an approval body. 6. Stamford lodged development application D/2013/2011 on 20 December 2013, and filed the Class 1 appeal against the deemed refusal of the application on 15 August 2014. Mulpha Australia Pty Ltd (Mulpha) is the owner of Transport House at 99 Macquarie Street and the Intercontinental Hotel (including the former Treasury Building) at 117-119 Macquarie Street. On 2 October 2014 Mulpha was joined pursuant to s 39A of the Court Act as a party to the proceedings: Stamford Property Services Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1206. Separate proceedings in Class 4 of the Court's jurisdiction initiated by Mulpha on 30 May 2014 have been resolved. The proposed development 1. The proposed development comprises the retention and adaptive reuse of the former Health Department building for retail and commercial uses and conservation works, and the partial demolition and adaptive reuse of part of the existing Sir Stamford Hotel and construction of a 19 storey (plus plant level) tower for residential and commercial uses. The existing basement car parking levels which include two levels of above ground façade and structure along the western boundary are to be retained. The development application was amended on 1 July 2014, and the proposed building now comprises: * 102 residential dwellings, being 8 studio apartments, 28 one-bedroom dwellings, 47 two bedroom dwellings,19 three bedroom dwellings, and 16 adaptable apartments; * 65 car parking spaces, being 62 residential spaces and 3 commercial/retail car parking spaces, and one service vehicle space; * 131 bicycle parking spaces and 5 motorcycles parking spaces; * Common open space on level 18 (246sqm); and * Pool and lounge (1272sqm) and gym (50sqm). 1. Private open space is provided for 28 apartments in the form of Juliet balconies, wintergardens for 42 of the two and three bedroom apartments, and terraces for four of the two and three bedroom apartments. 2. The proposed development includes internal screening to the southern façade to mitigate privacy impacts on Transport House and on the northern façade to mitigate privacy impacts on Quay Apartments. 3. The proposal includes construction of a new courtyard and pedestrian connection from Macquarie Street and Albert Street with a through site link (minimum width 2m) publicly accessible during the day and evening. Soft and hard landscaping works are proposed for the lower ground level, ground level, level 8 and level 18. Works proposed for the basements include retention of the existing loading dock and single vehicular access from Albert Street, retention of basement columns, and removal of redundant ramps at basement levels 2, 3, 5 and 6. 4. In its original DA and the amended DA Stamford states that the proposed building height is 60.5m plus a single stack of 3.1m. There is a dispute as to the height of the proposed building, discussed below. 5. The proposed development is shown in photomontages on Macquarie Street and Albert Street, figures 1 and 14 in the Architectus Statement of Environmental Effects (Ex A vol 1): Issues 1. The issues raised in the respondents' contentions are: * whether a site specific development control plan or a Stage 1 development application is required; * whether a competitive design process is required; * whether the proposed development demonstrates design excellence; * what are the setbacks required for the Macquarie Street and Albert Street frontages; * whether the proposed tower exceeds the applicable height control and, if so, whether a variation is justified; * whether the departures from the required setbacks to all boundaries have unacceptable impacts for bulk and scale, and view sharing impacts, that warrant refusal of the application; * impacts on the heritage significance of the heritage item on the site and items in the vicinity of the site; * impacts on the amenity of Transport House; and * whether the amenity of the proposed residential apartments in terms of solar access, privacy, building separation, and private and communal open space, is adequate. History of the application 1. The development application the subject of this appeal (D/2013/2011) (the 2013 DA) was lodged with the Council on 20 December 2013. A previous development application, D/2011/2078 (the 2011 DA), seeking consent for the demolition of the Sir Stamford Hotel and construction of a new residential apartment building with ground floor commercial and retail and retention and refurbishment of the former Health Department building was lodged on 21 December 2011 and withdrawn on 1 April 2012. 2. The following chronology summarises central events, including the competitive design process undertaken in 2010 and 2011; the assessment of heritage impacts; changes to the planning controls; and correspondence relating, inter alia, to application of the planning controls. It is based on a chronology prepared by Mulpha (Ex M9), as supplemented by the other parties. 16 March 2010 First pre-DA meeting with Council for DA/2011/2078 (2011 DA) at which time the Sydney Local Environmental Plan 2005 and Central Sydney Development Control Plan 1996 apply 30 March 2010 Letter from Council regarding pre-DA meeting for 2011 DA November 2010 Competitive Design Alternatives Brief prepared by JBA Urban Planning Consultants (JBA) November 2010 Heritage Issues Report prepared by Graham Brooks & Associates 18 November 2010 Competitive Design Alternatives Brief endorsed by Council 27 November 2010 Competitive Design Alternatives Brief issued 2 February 2011-4 April 2011 Draft Sydney Local Environmental Plan 2011 and Draft Sydney Development Control Plan 2010 publicly exhibited 10 May 2011 Choi Ropiha Fighera (now CHROFI) selected as winner of design competition 10 October 2011 Second pre-DA meeting with Council 21 December 2011 2011 DA lodged with Council 31 January 2012 Response to Council's request for additional information 28 February 2012 and 6 March 2012 Meetings with Historic Houses Trust 15 March 2012 Senior Heritage Specialist of Council provides preliminary assessment of 2011 DA to Heritage Division, Office of Environment and Heritage 1 April 2012 2011 DA withdrawn 2 April 2012 Council internal email correspondence concerning setback above street frontage height 4 April 2012 Report to Heritage Council of NSW Approvals Committee recommending refusal of 2011 DA 17 April 2012 Meeting with Council heritage officer to discuss former Health Department building 23 April 2012 Council's Design Advisory Panel met regarding 2011 DA 7 May 2012 Draft Sydney Development Control Plan 2010 reported to Council Planning Policy Sub-Committee 14 May 2012 Council resolved to accept officers' recommendation that Draft Sydney Development Control Plan 2010 be adopted 23 July 2012 Minister issues Interim Heritage Order over former Health Department building 1 August 2012 Heritage Council meeting to consider proposed 2013 DA (in concept) 31 August 2012 Report to Heritage Council prepared by Michael Harrison of Architectus in anticipation of 2013 DA for consideration at Heritage Council meeting 5 September 2012 Site visit and presentation to Heritage Council 14 December 2012 Sydney Local Environmental Plan 2012 and Sydney Development Control Plan 2012 come into force 31 January 2013 Pre-DA meeting for D/2013/2011 (2013 DA) 9 October 2013 Former Health Department building entered onto State Heritage Register 13 November 2013 Email from Architectus to Council seeking clarification of setback control December 2013 Conservation Management Plan and Heritage Impact Statement prepared by Graham Brooks & Associates 16 December 2013 Email from Council to Architectus regarding site setbacks 20 December 2013 2013 DA lodged with Council 24 December 2013 Council forwards 2013 DA to Heritage Council 8 January 2014 -10 February 2014 2013 DA publicly exhibited by Council 21 January 2014 Email correspondence between Council and Heritage Division concerning setback controls 14 February 2014 Mulpha objects to 2013 DA 5 March 2014 Heritage Council issues general terms of approval 1 April 2014 Architectus responds to submissions received by Council 8 April 2014 Presentation to Design Advisory Panel 16 June 2014 Council requests further design refinement of 2013 DA 1 July 2014 Stamford responds to Council request for design changes and attaches amended plans, montages and supplementary reports 3 July 2014 Council forwards amended documentation to Heritage Council 8 July 2014-23 July 2014 Council renotifies DA with amended documentation provided on 1 July 2014 7 July 2014 Heritage Council asks Council how to interpret setback controls 10 July 2014 Council responds to Heritage Council letter of 7 July 2014 11 August 2014 Council forwards submissions received in relation to renotified 2013 DA to Heritage Council and requests advice as to whether approval would be granted under Heritage Act 15 August 2014 Class 1 proceedings commenced against deemed refusal 20 August 2014 Heritage Council scheduled to meet to consider renotified 2013 DA. Officer report recommends refusal 28 August 2014 Lawyers for Heritage Council advise Mulpha's lawyers that Heritage Council did not consider renotified 2013 DA Planning Controls 1. The site is in the B8 Metropolitan Centre zone under the Sydney Local Environmental Plan 2012 (the 2012 LEP), and the proposed development is permissible with development consent. The objectives of the B8 zone, to which regard must be had under cl 2.3(2) of the 2012 LEP, are: • To recognise and provide for the pre-eminent role of business, office, retail, entertainment and tourist premises in Australia's participation in the global economy. • To provide opportunities for an intensity of land uses commensurate with Sydney's global status. • To permit a diversity of compatible land uses characteristic of Sydney's global status and that serve the workforce, visitors and wider community. • To encourage the use of alternatives to private motor vehicles, such as public transport, walking or cycling. • To promote uses with active street frontages on main streets and on streets in which buildings are used primarily (at street level) for the purposes of retail premises. 1. The maximum height shown on the Height of Buildings Map (cl 4.3(2)) for the site is 55m. The relevant objectives of the height development standard in cl 4.3 are: (1)The objectives of this clause are as follows: (a) to ensure the height of development is appropriate to the condition of the site and its context, (b) to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas, (c) to promote the sharing of views, (d) to ensure appropriate height transitions from Central Sydney and Green Square Town Centre to adjoining areas, … 1. There are three aspects of height relevant in this appeal: first, establishing what is the height of the development as proposed; secondly, whether the proposed development should have a bonus of up to 10% additional height, as permitted under cl 6.21(7)(a) of the 2012 LEP; and thirdly, to the extent that the proposed development exceeds the maximum height, whether compliance with the cl 4.3(2) development standard should be varied under cl 4.6 of the 2012 LEP. 2. Relevant definitions in the Dictionary to the 2012 LEP are: building height (or height of building) means the vertical distance between ground level (existing) and the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like. ground level (existing) means the existing level of a site at any point. ground level (finished) means, for any point on a site, the ground surface after completion of any earthworks (excluding any excavation for a basement, footings or the like) for which consent has been granted or that is exempt development. ground level (mean) means, for any site on which a building is situated or proposed, one half of the sum of the highest and lowest levels at ground level (finished) of the outer surface of the external walls of the building. 1. Clause 5.10 contains the heritage conservation provisions. Those provisions include: cl 5.10(4) which requires the consent authority, before granting consent in respect of a heritage item or heritage conservation area, to consider the effect of the proposed development on the heritage significance of the item or area; cl 5.10(5), under which the consent authority can require the preparation of a heritage management document to assess the extent to which the carrying out of the proposed development would affect the heritage significance of the item or area; and cl 5.10(6), under which the consent authority may require the submission of a heritage conservation management plan before granting consent. 2. Div 3 of Part 6 of the 2012 LEP addresses height of buildings and overshadowing, and includes cl 6.17 sun access planes. Clause 6.17(2) provides that development consent must not be granted if the development will result in any building projecting higher than any part of a sun access plane as provided in that clause. It was not in dispute that the proposed development complies with the relevant sun access plane. 3. Div 4 of Part 6 of the 2012 LEP provides for design excellence, in cl 6.21 which currently provides: 6.21 Design excellence (1) The objective of this clause is to deliver the highest standard of architectural, urban and landscape design. (2) This clause applies to development involving the erection of a new building or external alterations to an existing building on land to which this Plan applies. (3) Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed 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. (5) Development consent must not be granted to the following development to which this clause applies unless a competitive design process has been held in relation to the proposed development: (a) development in respect of a building that has, or will have, a height above ground level (existing) greater than: (i) 55 metres on land in Central Sydney, or (ii) 25 metres on any other land, (b) development having a capital value of more than $100,000,000, (c) development in respect of which a development control plan is required to be prepared under clause 7.20, (d) development for which the applicant has chosen such a process. (6) A competitive design process is not required under subclause (5) if the consent authority is satisfied that such a process would be unreasonable or unnecessary in the circumstances or that the development: (a) involves only alterations or additions to an existing building, and (b) does not significantly increase the height or gross floor area of the building, and (c) does not have significant adverse impacts on adjoining buildings and the public domain, and (d) does not significantly alter any aspect of the building when viewed from public places. (7) A building demonstrating design excellence: (a) may have a building height that exceeds the maximum height shown for the land on the Height of Buildings Map by an amount, to be determined by the consent authority, of up to 10% of the amount shown on the map, or (b) is eligible for an amount of additional floor space, to be determined by the consent authority, of up to 10% of: (i) the amount permitted as a result of the floor space ratio shown for the land on the Floor Space Ratio Map, and (ii) any accommodation floor space or community infrastructure floor space for which the building is eligible under Division 1 or 2. (8) Nothing in this clause permits a consent authority to grant development consent to the following development: (a) development that would result in any building on land projecting higher than any sun access plane that is taken to extend over that land by operation of Division 3, or (b) development that results in any building causing additional overshadowing of a kind specified in Division 3, or (c) development that results in any building on land in Area 1 or Area 2 on the Height of Buildings Map having a height greater than the height of the building that was on the land at the commencement of this Plan. (9) In this clause: building demonstrating design excellence means a building where the design of the building (or the design of an external alteration to the building) is the winner of a competitive design process and the consent authority is satisfied that the building or alteration exhibits design excellence. competitive design process means an architectural design competition, or the preparation of design alternatives on a competitive basis, carried out in accordance with the City of Sydney Competitive Design Policy. 1. The City of Sydney Competitive Design Policy (the CDP) as referenced in cl 6.21(9) is defined in the Dictionary to the 2012 LEP: City of Sydney Competitive Design Policy means the City of Sydney Competitive Design Policy adopted by the Council on 9 December 2013. Note. The Policy is made available by the Council on its website (www.cityofsydney.nsw.gov.au). 1. Clause 6.21 as in force at the date development application D/2013/2011 was lodged did not include the definition of "building demonstrating design excellence" in cl 6.21(9). Sub-clause 6.21(7) permitted the granting of additional height or FSR "if the design of a new building, or an external alteration to an existing building, on land is the winner of a competitive design process and the consent authority is satisfied that the building or alteration exhibits design excellence…". At the time the development application was lodged the Dictionary to the 2012 LEP defined "City of Sydney Competitive Design Policy" as the City of Sydney Competitive Design Policy adopted by the Council on 12 March 2012. 2. Clause 7.20 of the 2012 LEP provides: 7.20 Development requiring preparation of a development control plan (1) This clause applies to any of the following development: (a) development for the purposes of a new building, (b) development that increases the gross floor area of an existing building. (2) Development consent must not be granted to development to which this clause applies on the following land unless a development control plan that provides for the matters in subclause (4) has been prepared for the land: (a) land in Central Sydney, if the site area for the development is more than 1,500 square metres or if the development will result in a building with a height greater than 55 metres above ground level (existing), (b) land (other than land in Central Sydney or in Zone IN1 General Industrial), if the site area for the development is more than 5,000 square metres or if the development will result in a building with a height greater than 25 metres above ground level (existing). (3) A development control plan is not required to be prepared if the consent authority is satisfied that such a plan would be unreasonable or unnecessary in the circumstances or that the development: (a) involves only alterations or additions to an existing building, and (b) does not significantly increase the height or gross floor area of the building, and (c) does not have significant adverse impacts on adjoining buildings or the public domain, and (d) does not significantly alter any aspect of the building when viewed from public places. (4) The development control plan must provide for all of the following: (a) requirements as to the form and external appearance of proposed development so as to improve the quality and amenity of the public domain, (b) requirements to minimise the detrimental impact of proposed development on view corridors, (c) how 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 interface at ground level between the building and the public domain, (xiii) the excellence and integration of landscape design, (xiv) the incorporation of high quality public art into the fabric of buildings in the public domain or in other areas to which the public has access. Note. Section 83C of the Environmental Planning and Assessment Act 1979 provides that if an environmental planning instrument requires the preparation of a development control plan before any particular or kind of development is carried out on any land, that obligation may be satisfied by the making and approval of a staged development application in respect of that land. 1. Section 83C of the Act provides: 83C Staged development applications as alternative to dcp required by environmental planning instruments (1) An environmental planning instrument cannot require the making of a staged development application before development is carried out. (2) However, if an environmental planning instrument requires the preparation of a development control plan before any particular or kind of development is carried out on any land, that obligation may be satisfied by the making and approval of a staged development application in respect of that land. Note. Section 74D (5) also authorises the making of a development application where the relevant planning authority refuses to make, or delays making, a development control plan. (3) Any such staged development application is to contain the information required to be included in the development control plan by the environmental planning instrument or the regulations. 1. The Sydney Development Control Plan 2012 (the 2012 DCP) applies to the site. The purpose of the 2012 DCP (section 1.1) is to supplement the 2012 LEP and "provide more detailed provisions to guide development". Section 2 provides locality statements and supporting principles, including for Section 2.1 Central Sydney. The site is located in the Macquarie Street Special Character Area (SCA) (section 2.1.6), described in the following terms: Macquarie Street contains a collection of highly significant buildings dating from the early 19th century to the late 20th century. Originally a government precinct, it has expanded to embrace first residential, professional, then commercial and tourism uses. Macquarie Street forms the eastern built edge of the City Centre. It is characterised by two distinct sides: its western built edge consists of medium scale buildings, stepping up to the city high rise beyond, creating a prominent city skyline when viewed from the Botanic Gardens; while the eastern edge includes the Botanic Gardens and to the south a cohesive rare group of public buildings of national significance, that terminate east-west streets and create significant vistas, particularly from Martin Place. Macquarie Street is an important civic street providing a vista terminated to the south by Hyde Park, with views north to the Opera House. 1. The Macquarie Street SCA is shown as Area "G" on the Special Character Areas Map Retail Premises Map – Sheet CL2_014 in the 2012 LEP. Area G extends on the western side of Macquarie Street south from the Cahill Expressway to King Street, and on its eastern side south from Bent Street/Shakespeare Place at the State Library to The Mint building. The SCA includes the buildings fronting Macquarie Street on its western side, and for the area south of Shakespeare Place on the eastern side, the buildings between Macquarie Street and Hospital Road, including Parliament House and Sydney Hospital. 2. The principles applicable to the Macquarie Street SCA are: (a) Development must achieve and satisfy the outcomes expressed in the character statement and supporting principles. (b) Recognise Macquarie Street as one of Sydney's pre-eminent public spaces flanked by heritage items which house activities of State and national significance. (c) Protect and extend mid-winter lunchtime sun access to Hyde Park, the Royal Botanic Gardens and the Domain. (d) Improve and enhance the public domain and pedestrian amenity of the street and promote its image as a grand and civic boulevard. (e) Maintain and reinforce the urban character and scale of Macquarie Street and sense of built edge definition to the western side of the Royal Botanic Gardens by requiring new buildings to: i. be built to the street alignment; and ii. have street frontage heights and building setbacks above street frontage heights, consistent with the prevailing scale, form and character of buildings nearby. (f) Emphasise Macquarie Street as the eastern built edge of the City and maintain the stepped building form from it westwards towards the north-south ridge of the City centre. (g) Maintain and enhance existing views and vistas to the harbour and Opera House to the north and Hyde Park to the south. (h) Conserve and enhance the heritage significance of the area including the nineteenth and twentieth century public, institutional, religious and commercial buildings and their settings. (i) Ensure new development is designed and sited to protect the heritage significance of heritage items within the area, with special consideration given to heritage curtilage of heritage items established by an approved Conservation Management Plan. 1. Section 3.3 of the 2012 DCP provides for Design Excellence and Competitive Design Processes, and states that the provisions in section 3.3 complement cl 6.21 of the 2012 LEP and are to be read in conjunction with the City of Sydney Competitive Design Policy and the Model Competitive Processes Brief. The objectives are: (a) Ensure high quality and varied design through the use of competitive design processes for large and prominent developments. (b) Ensure development individually and collectively contributes to the architectural and overall urban design quality of the local government area. (c) Encourage variety in architectural design and character across large developments to provide a fine grain which enriches and enlivens the City's public realm. 1. Section 3.3.1 and 3.3.2 provide for the competitive design process and Design Excellence Strategy, and sections 3.3.3-3.3.6 for awarding of additional height or floor space. 2. Section 3.3.8 states that a site specific development control plan or a Stage 1 development application required under cl 7.20 of the 2012 LEP must address the issues set out in clauses 7.20(4) and 6.21 of the 2012 LEP. The documentation required as part of a site specific development control application is specified in 3.3.8(1): (a) Site, context and development options analysis; (b) Public domain layout including levels, uses, access and circulation and dedications; (c) Built form massing and dimensioned envelopes; (d) Distribution of uses and floor space areas; (e) Overshadowing analysis; (f) Stormwater management strategy; (g) Traffic management and servicing strategy and parking numbers and location; (h) Ecologically sustainable development strategies and benchmark commitments (including connection to green infrastructure); (i) Heritage impact statement; (j) Design excellence strategy; (k) Landscape concept plan; (l) Public art strategy; and a (m) Staging plan. 1. Section 3.9 Heritage has the following objectives: (a) Ensure that heritage significance is considered for heritage items, development within heritage conservation areas, and development affecting archaeological sites and places of Aboriginal heritage significance. (b) Enhance the character and heritage significance of heritage items and heritage conservation areas and ensure that infill development is designed to respond positively to the heritage character of adjoining and nearby buildings and features of the public domain. 1. Section 3.9.2 provides for Conservation Management Plans, and section 3.9.5 for development affecting a heritage item. 2. Section 4.2 of the 2012 DCP includes provisions for building height and form (section 4.2.1), and amenity, including private open space and balconies (4.2.3.7), and outlook (4.2.3.10). 3. Other relevant provisions of the 2012 DCP include section 5.1.2 (Building setbacks), and section 5.1.3 (Street frontage heights and setbacks for Special Character Areas). 4. State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) applies, and cl 30 requires consideration of design quality when evaluated in accordance with the design quality principles in cll 7-18, and the Residential Flat Design Code (RFDC). Section 4.2 of the 2012 DCP provides objectives and provisions for residential flat, commercial and mixed use developments, and states that in the event of an inconsistency between the RFDC and a provision in the DCP, the DCP will prevail. The contentions Council's contentions 1. The Council's contentions as identified in its Amended Statement of Facts and Contention (Ex C1) are: 1. requirement to prepare a site specific development control plan (site specific DCP): preparation of a site specific DCP or Stage 1 DA would have established appropriate parameters for the development and insufficient justification has been provided to demonstrate that preparation of a site specific DCP or Stage 1 DA would be unreasonable or unnecessary; 2. non-compliance with the site specific setback above street frontage control for Macquarie Street (10m); 3. non-compliance with the site specific setback above street frontage height control for Albert Street (8m); 4. non-compliance with side (southern) and rear (western) setback requirements; 5. adverse impacts on the heritage significance, setting, character and views of the heritage item on the site, heritage items in the vicinity of the site, and the local, state and national significance of the site and the locality; 6. non-compliance with solar access requirements for residential apartments; 7. non-compliance with private open space requirements for residential apartments; 8. proposal does not exhibit design excellence and is not entitled to additional 10% building height, and does not comply with 55m building height requirement; 9. proposal not in the public interest as it has not properly applied the applicable planning controls, and for the matters raised in submissions; 10. insufficient information [addressed]; and 11. non-compliance with height of building development standard. 1. In submissions the Council expressed the issues requiring resolution in the form of four questions: 1. Having regard to the urban and historical context and the planning controls, including design excellence, does the proposal fit? 2. Does the proposal cause unacceptable impact? 3. Is the resulting amenity of the apartments acceptable? 4. Has the process undertaken enabled the consent authority to be satisfied that the best possible outcome has been achieved? 1. The Council submits that the answer to those questions is no, yes, no and no. In summary, the Council's position is that a site specific development control plan or Stage 1 DA is required; the proposal pays insufficient respect to the heritage item on the site and the street in the size, form , location and height of the building; there is no reason not to comply with the height control; and the internal amenity is inadequate. Mulpha's contentions 1. In its Statement of Facts and Contentions (Ex M1) Mulpha raised the following contentions in addition to those raised by the Council: 1. non-compliance with the 30m setback above the nominated street frontage height control for Macquarie Street; 2. non-compliance with the 30m setback above nominated street frontage height control for Albert Street; 3. view loss impact on the Intercontinental Hotel as a consequence of non-compliance with 30m setback control; 4. heritage impacts; and 5. urban design: inadequate communal open space and pedestrian through-site link. 1. Mulpha submits that the proposed development is contrary to the applicable planning controls and the planning merits. On the former, Mulpha submits that on a proper construction of the 2012 LEP competitive design procedures and the 2012 DCP setback controls: 1. the proposed building has not been the subject of a competitive design process as defined in the 2012 LEP and carried out by reference to the currently applicable controls and a site specific development control plan as required by the 2012 LEP and for that reason cannot be found to exhibit design excellence; 2. the proposal requires a development control plan to identify the appropriate use and mix of uses for the site and to set the planning controls and development standards applying to the site; and 3. the 2012 DCP does not permit a tower development on the site, instead requiring setback to the street frontage height of Transport House across the whole site with the possible exception of above the former Health Department building which may require the street frontage setback height to be the lower height of that existing heritage building. 1. On the merits, Mulpha submits that the tower is inappropriate; the privacy impacts on Transport House are unacceptable; the impacts on heritage are such that the proposal is out of place in the northern end of Macquarie Street; there is an impact on views for 52 rooms in the Intercontinental Hotel, being 3 or 4 rooms on levels 11 to 23, which can be described as severe; and the proposed development is deficient in private open space and solar access. Evidence Objector evidence and the view 1. The development application was publicly notified between 8 January 2014 and 8 February 2014, and 20 submissions were made to the Council. Following the amendment of the development application, the Council notified those who had previously made submissions, and received 11 submissions. Copies of all the submissions received in response to the first notification, including those received after the close of the official notification period, were forwarded to the Heritage Council on 5 June 2014. The Council forwarded to the Heritage Council copies of the submissions received in response to the amended scheme on 11 August 2014. 2. Copies of those submissions are in evidence (Ex C3). The submissions included submissions by, and on behalf of, residents of The Astor; by, and on behalf of, residents of Quay Apartments; on behalf of Save Circular Quay Inc; by The Royal Botanic Gardens and Domain Trust, the National Trust, Emeritus Professor Peter Webber, and the Australia ICOMOS Secretariat; and on behalf of Mulpha. The submissions are comprehensive and detailed. 3. In summary, the submissions raise objections concerning impacts on listed heritage items and the heritage townscape, bulk and scale, impacts on the streetscape and on neighbouring properties and the urban form in the precinct, and the impact of the high tower on the character of the area. The submissions on behalf of The Astor raise additional concerns as to loss of views on the western side of the building, loss of public car parking, loss of the hotel as a facility for visitors to Sydney and for the residents of The Astor, loss of the view from the rooftop garden, and loss of sunlight. The submissions by and on behalf of Quay Apartments raise concerns as to breaches of the planning controls, wind impact, loss of views, and the ability of Albert Street to cope with increased traffic. Save Circular Quay Inc raise concerns as to the suitability of the site for a tower development, the reduction in setbacks, traffic, heritage and design impacts, and privacy. Professor Webber raises concerns as to adverse impacts on the streetscape, on neighbouring properties and on heritage items, and on the urban form in this important precinct. The National Trust objects to the dominance of the high tower and its minimal setbacks, and change to the character of the area. Australian ICOMOS states concern for the impacts on the heritage townscape and inappropriate precedent for tall buildings, and impacts on state and national heritage significance of the area. Mulpha's submission raises objections to reduced setbacks, loss of views from the Intercontinental Hotel, and lack of justification for waiving the requirement for a Stage 1 DA or site specific development control plan. 4. On the second day of the hearing the Court, and the parties' legal representatives and experts, had a view. The view commenced on Macquarie Street opposite the site, where submissions were made by Mr John Freeman, resident of The Astor; Ms Sonia Fenton, on behalf of Save Circular Quay Inc; and Professor Peter Webber. The view continued to the roof terrace of The Astor, and units 1 and 2 on level 10. Ms Valerie Gregg and Mr Geoff Bray made submissions. The view then continued to unit 1901 of the Quay Apartments, where Mr Richard Owens made submissions. The view included the corner of Albert and Phillip Streets, Albert Street to Macquarie Street, up Macquarie Street past Transport House to the corner with the Cahill Expressway and the Botanic Gardens, the corner of Macquarie Street and Bridge Street, and along Bridge Street to the Intercontinental Hotel. The view of the hotel included room 26 on each of levels 18, 19 and 22. The view continued to level 6 Transport House on its northern side adjoining the site, and then south along Macquarie Street to No 60 Martin Place. The final part of the view was a view of the City of Sydney model at Town Hall. 5. Agreed notes of the submissions made on the view by objectors are in evidence (Ex C15). Those submissions restate and amplify many of the objections in the written submissions made to the Council, and include objections relating to the height and bulk of the tower, inadequate setbacks, loss of the hotel and the public car parking, non-compliance with the planning controls, inappropriateness of the building form, impact on outlook and views from shared rooftop area of The Astor, impact on sunlight and views from The Astor units, impact on streetscape, increase in traffic, and impact on views and privacy for Quay Apartments. 6. Ms Briony Mitchell, planner, made written submissions to the Council on behalf of residents of Quay Apartments, and Save Circular Quay Inc, and gave oral evidence in court on the third day of the hearing as to impacts on privacy, views and heritage, and the bulk and scale of the proposal, and that a tower would be inappropriate if the 30m setback control were applied. Expert evidence 1. Expert evidence on heritage issues was provided by Mr Brian McDonald (on behalf of Stamford), Mr Otto Cserhalmi (on behalf of the Council), and Mr Alan Croker (on behalf of Mulpha). Each expert provided an individual Statement of Evidence (exhibits F, C6 and M8). The experts conferenced and provided a joint report (Ex C12), and gave oral evidence. 2. Expert evidence on planning issues was provided by Mr Giovanni Cirillo (on behalf of Stamford), Ms Sandra Robinson (on behalf of the Council) and Mr Robert Chambers (on behalf of Mulpha). Each expert provided an individual Statement of Evidence (exhibits E, C5 and M7). Expert evidence on urban design issues was provided by Mr Michael Harrison (on behalf of Stamford), Mr Tim Williams (on behalf of the Council), and Ms Gabrielle Morrish (on behalf of Mulpha). Each expert provided an individual Statement of Evidence (exhibits D, C7 and M5). Mr Harrison provided an individual Statement of Evidence addressing the Council's contention 11 Height (Ex G). Dr Richard Lamb provided expert evidence on visual impact on behalf of Mulpha, and provided a Statement of Evidence (Ex M6). 3. The planning, urban design and visual impact experts conferenced, and provided the following joint reports: * exhibit C9: joint report on Council's contention 11, building height (Mr Harrison, Ms Robinson, and Mr Chambers); * exhibit C10: joint report on planning issues raised in Council's contentions 1, 2, 3, 4, 5, 9 and 11 (Mr Chambers, Mr Cirillo and Ms Robinson); and on planning issues raised in Mulpha's contentions: (Mr Chambers and Mr Cirillo); and * exhibit C11: joint report on urban design, view impacts and amenity (Mr Harrison, Mr Williams, Ms Robinson, Ms Morrish and Dr Lamb). In this report all five experts discussed the Macquarie Street context and setbacks, the Albert Street context and setbacks, and design excellence; Mr Harrison, Ms Morrish, Ms Robinson and Mr Williams discussed the relationship to Transport House and the relationship to the former Health Department building; Mr Harrison, Ms Robinson and Mr Williams discussed the relationship to Quay Apartments; Mr Harrison, Ms Morrish and Ms Robinson discussed solar access and amenity, private open space, communal open space, and the through site link; Mr Harrison, Ms Robinson, Mr Williams and Dr Lamb discussed view loss; and Mr Harrison, Ms Morrish and Dr Lamb discussed the 2012 DCP Special Character Area controls. 1. The planning, urban design and visual impact experts, other than Mr Chambers, were present at the view and gave oral evidence in court. Mr Chambers provided a written opening statement (Ex M13). 2. Photomontages were provided by Mr Tai Ropiha on behalf of Stamford, and Mr Lipco Trajcevski on behalf of the Council (exhibits H and C8). There was no dispute as to the technical accuracy of the photomontages and compliance with the Court's practice direction. The Court was provided with photographs taken of the City of Sydney model on the view by Mr McDonald (Ex M), and photographs of the City of Sydney model taken with the present structures, and with the development as proposed (Ex C14). 3. The Council's contentions included a contention (contention 10) that insufficient information had been provided in relation to finished floor to floor heights, and on acoustic issues. Mr Ropiha provided a report on floor to floor heights (Ex K), and Mr Tom Candalepas provided an expert report on acoustic issues (Ex J). The Council confirmed its position that this contention has been addressed. Consideration 1. The Council contends that consent cannot be granted because a site specific development control plan (site specific DCP), or a Stage 1 DA, is first required pursuant to cl 7.20(2) of the 2012 LEP, and that it has not been demonstrated that preparation of a site specific development control plan or Stage 1 DA would be unreasonable or unnecessary in the circumstances. 2. For the reasons which follow, we are not satisfied that cl 7.20(2) is met or that a development control plan addressing the matters required by cl 7.20(4) (or a Stage 1 DA) is unreasonable or unnecessary in the circumstances, and on that basis, consent to the proposed development cannot be granted. We are of the view that there are several matters which require resolution in the form of a development control plan or Stage 1 DA. The following reasons explain why we have reached the conclusion that cl 7.20(2) precludes the granting of development consent, and address the matters raised in the other contentions to the extent necessary to provide a basis for that conclusion. Whether a site specific DCP, or a Stage 1 DA, is required 1. It was common ground that the site area and proposed height of the development fall within cl 7.20(2) of the LEP, and that development consent must not be granted "unless a development control plan that provides for the matters in subclause (4) has been prepared for the land", unless cl 7.20(3) applies. As noted above, s 83C of the Act would permit the making and approval of a staged development application, containing the information required to be included in the development control plan, as an alternative to a development control plan. 2. In the discussion which follows, we refer to a "site specific development control plan" or "site specific DCP", to encompass both the development control plan specified in cl 7.20(2) and the alternative staged development application permitted by s 83C of the Act (referred to in the evidence and submissions as a Stage 1 DA). 3. The Council contends that there is no site specific DCP for the site, nor is there a Stage 1 DA which would be permitted by s 83C of the Act as an alternative. Preparation of a site specific DCP, or the preparation and lodgement of a Stage 1 DA, would have established the appropriate parameters for future redevelopment of the site in accordance with cl 7.20(4)(a)-(c) of the LEP and the DCP, and addressed many of the built form, setback and heritage issues; and insufficient justification has been provided to demonstrate that the preparation of a site specific DCP or Stage 1 DA would be unreasonable or unnecessary in the circumstances. The dispensation power in cl 7.20(3) should be considered in light of the identified circumstances where a development control plan is not required in subclause (3), which are where there is only a minor development involved. 4. It is also pertinent in considering subclause (3) to consider the relevant provisions of the 2012 DCP including the obligation under cl 3.3.8 to prepare and consider alternate designs. The competitive design process is not a substitute for the requirements of cl 7.20 and the site specific DCP, and is a separate and independent obligation as part of a process whereby the CSPC makes a determination, and not a competition jury. The Council submits that without a site specific DCP it cannot be established that the proposed development is the best possible outcome consistent with the objectives of cl 6.21(1). The provisions of the 2012 DCP cannot be regarded as meeting the requirements for a site specific DCP as the 2012 LEP and 2012 DCP were a package of planning documents, and the content of the DCP was known at the time the 2012 LEP was made, so the reference in cl 7.20 to a "development control plan" cannot be a reference to the 2012 DCP. 5. Stamford submits that the preparation of a site specific DCP is unreasonable or unnecessary pursuant to cl 7.20(3) given the particular circumstances of the case, the site specific provisions in the 2012 DCP, and the history of the proposal. In particular there are detailed provisions in relation to the site provided within the 2012 DCP in relation to the Macquarie Street SCA as well as street frontage heights and setbacks. At the time of drafting of the 2012 DCP Council officers envisaged that the detailed provisions of the 2012 DCP could provide a basis in certain circumstances for the consent authority forming a view that a site specific DCP was unreasonable or unnecessary, as demonstrated in a report to the CSPC dated 8 March 2012 prepared following exhibition of the draft DCP which referred to detailed provisions for Epsom Park and noting that, unless an applicant proposed a substantially different scheme to that envisaged in the DCP, the requirement for a site specific DCP could be waived (Ex C, tab 12). 6. Stamford also relied on a letter dated 30 March 2010 from the Council's Director City Planning and Regulatory Services to Stamford's representative in which he stated that, provided an appropriate design excellence process was completed, a design solution achieving the highest design excellence was selected, and a subsequent DA was lodged complete in detail and resolution, a recommendation would be made that a Stage 1 DA be waived; all requirements which Stamford submits were complied with. 7. Stamford relies on: * the justification provided with the 2013 DA as to why a Stage 1 DA/site specific DCP was not reasonable or necessary in the circumstances, which included the requirement in the Brief for Competitive Process–Design Alternatives (November 2010) that cl 25(3) of the Sydney Local Environmental Plan 2005 (the 2005 LEP) be addressed in any design, and those requirements are substantially similar to the requirements of cl 7.20(4); * the Competitive Design Alternatives Report (May 2011), which states that the design of the winning scheme is consistent with the provisions of the then draft LEP 2011 in addressing the heritage issues and streetscape constraints, the bulk, massing and modulation of the building, the street frontage heights, the pedestrian, cycle, vehicular and service access and circulation requirements, the impact on the special character area, and the principles of ESD, all matters expressly referred to in cl 7.20(4); and * the outcome of the competitive design alternatives process, which was that of the three fully documented design alternatives submitted a winning scheme was chosen by the selection committee which is substantially the same as the proposed development. 1. Mulpha submits that cl 7.20(2)(a) dovetails with cl 6.21(5)(c) of the LEP which makes the requirement for a site specific DCP a trigger for the need for a competitive design process. This scheme of the 2012 LEP is antithetical to Stamford's assertion relying on the design of the proposed development, and avoiding the proper process in the 2012 LEP cannot be justified by that assertion. A site specific DCP would need to be publicly exhibited, allowing public submissions and participation on matters such as the suitable use and mix of uses for the site as well as suitable planning controls for the site with more detail than those in the 2012 LEP and 2012 DCP. 2. Mulpha submits that the 30 March 2010 letter from the Director City Planning and Regulatory Services cannot be relevant to the application of cl 7.20 of the LEP to the present application lodged in December 2013, as it was written before cl 7.20 came into effect. The 2012 DCP cannot be regarded as a site specific DCP as at a minimum it does not address all the matters provided in cl 7.20(4). The question of whether a site specific DCP is unreasonable or unnecessary must be considered in the context of whether there are other controls addressing the matters in cl 7.20(4) and is not a matter to be considered at large, and as the DCP does not address a number of those matters it cannot be properly said that the preparation of a site specific DCP is unreasonable or unnecessary. Mulpha submits that the 2012 DCP does not address all those matters, and further, that the fact that there is significant disagreement as to the interpretation of the subject controls is in itself a reason for preparing a site specific DCP in the public interest. The only matter which the DCP addresses specific to the site is the setback – all the others are essentially general; and even that provision which is specific has a construction issue. The clarification of the setback requirements applying to the site would be a significant and substantive benefit deriving from the site specific DCP process. A site specific DCP would give guidance on height, if there is to be a tower; and could provide a series of setbacks for different levels. 3. In reply Stamford submits that cl 6.21(5), requiring a competitive design process for development for which the applicant has chosen such a process, has nothing to do with cl 7.20(2). Public participation is hardly relevant where there has been exhibition of the 2013 DA; and the 2013 DA being one for the specific development, permits of the consideration of a far greater number of matters than a development control plan would have, as matters such as solar access, private open space and privacy would likely be deferred in a development control plan-making process. In so far as alternatives are concerned, that requirement is in the DCP and not in cl 7.20, and in any case, the competitive design process undertaken produced three alternatives, all of which were lodged with the 2013 DA and are before the Court. 4. As part of its amended DA, Stamford made a formal submission in Section 6.0 of its Supplementary Planning Report dated 1 July 2014 requesting that the consent authority waive the requirements of cl 7.20(2) on the basis that compliance would be unreasonable or unnecessary, pursuant to cl 7.20(3) of the 2012 LEP (Ex A vol 4, tab C 105-114). In summary, the request identified as relevant background the 30 March 2010 letter from the Council Director City Planning Development and Transport which stated that having regard to the circumstances of the site and provided that an appropriate design excellence process was completed, and a design solution achieving the highest design excellence was selected, and a subsequent DA was lodged complete in detail and resolution, a recommendation would be made to the CSPC that a Stage 1 DA be waived. Stamford also relied on the design excellence process already undertaken; and the brief for the design alternatives process. The request submitted that a development control plan would be unreasonable or unnecessary in the circumstances because: 1. the 2012 LEP and 2012 DCP provide sufficient guidance for the future development of the site; 2. the complex circumstances of the site require a unique design response at the level of detail required at a Stage 2 DA; 3. the site's constraints, including the sun access plane and the response to the heritage item, mean that there are limited ways to develop the site; 4. the proposed development is generally consistent with the primary controls for the site, being land use, FSR, height, and the sun access plane; 5. the proposal is the result of an alternatives process and satisfies all the aspects of a design alternatives process; 6. the proposed non-compliances can be demonstrated to largely have a positive or neutral impact; 7. the proposed development has been considered by the Design Advisory Panel and considered to be a 'skilful' design outcome for the site; 8. the proposed building envelope is irregular; and 9. the current DA satisfies the criteria of the 2010 letter from Council. 1. At pp 109-113 Stamford's Supplementary Planning Report identified how each of the issues as provided in cl 7.20(4)(a)-(c) had been addressed as part of the competitive design process and development application, and at p 114 it concluded: 517. It is unlikely that a development control plan or Stage 1 DA would result in a better outcome for any of the aspects listed under Clause 7.20(4) and addressed above…. The expert evidence 1. The experts disagreed as to whether preparation of a site specific DCP or a Stage 1 DA would be unreasonable or unnecessary. Mr Cirillo and Mr Harrison were of the opinion that it would be unreasonable or unnecessary in this instance, while Ms Robinson and Mr Chambers disagreed. 2. Mr Harrison addressed the Council's contention 1 in his individual expert report (Ex D). He disagreed that a Stage 1 DA would have resulted in a better outcome for the site, because: * all of the competition entries resulted in schemes with a similar massing; * the architects (with advice from their heritage consultants) have a good understanding of the site and its context and have balanced many competing objectives; * the 2012 LEP and 2012 DCP provide sufficient guidance for future development of the site with clear and comprehensive controls; * the complex circumstances of the site require that a unique design response is needed at the level of detail required at a Stage 2 DA; * the site's constraints including the sun access plane and the response to the heritage item mean that there are limited ways to develop the site; the proposed development is generally consistent with the primary controls for the site; * the proposal is the result of a design alternatives process; * the proposed non-compliances largely have a positive or neutral impact and it is unlikely that a Stage 1 DA or site specific DCP would have produced a better result in regard to the non-compliances; * the proposed development was considered by the DAP to be a "skilful" design outcome for the site; * a Stage 1 DA process may not have provided certainty as to the workability of the proposed massing given the site's unique constraints and context, or have enabled a design to be prepared to a sufficiently advanced state to respond to the site's constraints; and * it would be inappropriate to approve a mid-rise tower form on the site without understanding the detail of how that tower was to be resolved. * In his opinion the competition brief and competitive design process was the best process for the complicated site and was an appropriate replacement of the need for a Stage 1 DA. 1. Mr Cirillo, Ms Robinson and Mr Chambers addressed the Council's contention in their individual statements of evidence, and in their joint report (Ex C10). They agreed that the site is subject to cl 7.20; that section 6.0 of the 2012 DCP comprises site specific DCP controls and the site is not addressed in section 6.0; that the 8m/10m setback controls were not the subject of an exhibited draft DCP prior to adoption of DCP 2012; that a site specific DCP could have determined unambiguous setback above street frontage controls for the site; and that towers in the vicinity are not located in the Macquarie Street SCA. 2. Mr Chambers and Ms Robinson did not consider that the requirement to prepare a site specific DCP is unreasonable or unnecessary in this instance. In their opinion, if a site specific DCP had been prepared for the site, it could have established the following matters before Stamford embarked on a detailed design (Ex 10, p 4): * an appropriate building envelope (podium, street frontage height, setback above street frontage height, heritage curtilage, side/rear setbacks, building height above street frontage height, building separation, etc); * pedestrian access points and links; * vehicular access points; * land use mix; * streetscape activation; * design objectives; * suitability of the 2012 DCP controls; * contextual issues (heritage, view impact, streetscape, location of tall buildings, location of site within Macquarie Street SCA, boundary conditions and interface with neighbouring buildings, views from nearby buildings etc); and * design excellence strategy, ie, an assessment of whether the site can accommodate up to an additional 10% height. 1. In their opinion, given the sensitive heritage context of the site, adjoining heritage items and the place of the site in the Macquarie Street SCA, there is an even greater need to prepare a site specific DCP for the site. 2. Ms Robinson considered that a site specific DCP would have resolved a number of specific issues, namely the determination of "ground level (existing)" and assessment of height non-compliance; whether the site could support additional height assuming that the 10% bonus was available; envelope options for the site having regard to heritage/streetscape/urban design concerns; and the appropriateness of a predominantly residential development on the site; and further, that in circumstances where the development departs from all the nominated site specific and general setback controls, a site specific DCP would have provided considerable utility. 3. Mr Chambers considered that a site specific DCP is reasonable and necessary, as a significant variation to the 30m setback control in the 2012 DCP should not be made without one. In his opinion it is not appropriate to avoid dealing with the apparent conflict in the interpretation of the relevant setback above street frontage height control other than by preparing a site specific DCP; and, even if a Stage 1 DA were prepared as an alternative to a site specific DCP, there would still be a need for an amendment to the 2012 DCP because of the significant and profound implications on the allowable built form of removal of a large part of the blue shading on Figure 5.15 which would warrant proper consultation with stakeholders. 4. Mr Cirillo disagreed. In his opinion the setback above street frontage and podium height controls in the 2012 DCP can serve the equivalent function of a site specific DCP. In this instance Stamford has lodged a single stage DA after the completion of a competitive design process in accordance with a detailed process agreed specifically with the Council in the terms of the letter of 30 March 2010. The 2012 LEP and 2012 DCP provide site specific guidance for the future development of the site, and the recent and site specific controls provided in the 2012 DCP provide adequate information about the permissible building envelope, suitable uses on the site, and objectives for where non-compliances are to be argued on merit. The subject design alternatives process and DA have amalgamated and reconciled the design considerations of a typical two stage DA process. No additional "design excellence" benefit would necessarily have resulted from a fragmented DA process or the preparation of a further development control plan, and in this case greater certainty has been provided of achieving "design excellence" through a comprehensive and fully documented single stage DA. The complexity of the site warrants a single DA assessment process as a way of reconciling envelope configuration, heritage constraints and apartment design simultaneously. 5. Mr Cirillo and Ms Robinson maintained their opinions in their oral evidence on this issue. In his written opening statement (Ex M13) Mr Chambers also maintained his position, commenting that if Stamford had complied with the requirement for a site specific DCP fundamental site planning and contextual matters such as bulk, scale, height, and front, rear and side setbacks would have been resolved as part of a thorough, logical and transparent process which considered options and alternatives to achieve the best possible outcome. The competitive design process 1. A significant element in Stamford's argument as to why a site specific DCP is not needed is the competitive design process undertaken in 2010 and 2011. It is necessary to consider that process and its outcomes in some detail, by reference to the controls and policies applicable at the time the process was undertaken, and the present controls and policies. 2. A summary of the competitive design process is provided in Mr Harrison's statement of evidence (Ex D, pp 127- 129). The Council advised at the pre-DA lodgement meeting for the 2011 DA held on 16 March 2010 that a design competition or preparation of design alternatives on a competitive basis would be required for the site (Statement of Environmental Effects, p 12; Ex A vol 1; Ex C, tab 7 p 227). Mr Harrison notes that the competition comprised an "invited" competitive process whereby alternative designs were considered, and Choi Ropiha Fighera (now CHROFI) was one of the three entrants invited to the process. 3. The Brief for Competitive Process – Design Alternatives (the Brief) (Attachment 1 to Tab C, Ex A vol 4; Ex C3 tab 6) was prepared by JBA on behalf of Stamford. The purpose of the competitive process was stated to be "to select a high quality architectural and urban design solution" for the redevelopment of the site (p1). One of the six specific aims of the process was "to contribute a building sympathetic to the Macquarie Street streetscape whilst being imaginative, contemporary and appropriate"; another aim was to assist the development approval process by addressing all issues including demonstration of design excellence (p1). 4. Other salient aspects of the Brief were as follows 1. it notes that Macquarie Street is listed as a Special Area in the 2005 LEP and includes the character statement for the Area (pp3-4). It also includes a Heritage Context section which notes that the site is surrounded by a number of significant heritage buildings and features and lists the objectives for the Special Area (p4). Reference materials provided to competitors included a Heritage Design Detail Report prepared by Graham Brooks and Associates (p5); 2. an objective for the process was identified as "to achieve general consistency with the relevant planning instruments, within the commercial and design excellence objectives of the brief", including the 2005 LEP, the 1996 DCP, SEPP 65 and the RFDC (p7); 3. entrants were asked to consider whether a lower street frontage height than the minimum 35m and maximum 45m stipulated in the 1996 DCP would be a better design response matching the adjoining heritage item; 4. the Brief noted that a 30m above street frontage setback applied, and stated that "if strictly applied this would render the site undevelopable above street frontage height", and "any appropriate above street frontage setback will need to be argued on merit" (p7); 5. a key objective of the process was to achieve a 10% bonus above the 55m height limit, but there was to be no exceedance of the sun access plane (p7); 6. any instances of non-compliance had to be identified and justified against the objectives of the planning controls (p8); 7. designs were to have regard to design advice provided to Stamford in meetings with Council officers, including that the podium building along Macquarie Street should match the street wall height of the heritage building adjacent, and that an appropriate setback to the tower building from the podium building was required (p9); and the Council would expect SEPP 65 and the RFDC to be complied with (p10); and 8. Stamford had negotiated an easement on the western boundary to address Council's residential setback requirements (p8). 1. The Brief included a number of considerations for the competitive process and for the detailed DA design arising from design objectives provided by the Council. The former included "an appropriate setback to the tower building from the podium building" (p 9), and the latter, that "all matters under cl 25(3) of SLEP 2005 are to be addressed" (p 10). 2. The Brief noted that the competitive process would be overseen by an impartial observer appointed by the Council (p11); a committee would select the preferred design; and that the decision of the developer would not fetter the discretion of the consent authority in its determination of any subsequent development application (p13). 3. The Brief was considered by the Council in draft form and generally endorsed, with suggested amendments, and the final brief was endorsed by the Council in November 2010 (Ex C3, p 1127). 4. At the end of the process, and also in accordance with the Brief, Stamford's planning consultants (JBA) produced a Competitive Design Alternatives Report (May 2011) (Ex A vol 2, tab F) detailing the design alternatives considered and overviewing each design. The designs varied significantly in appearance but all three contained a tower element. We note that the evidence before the Court does not specify the extent of setbacks proposed for each design. The Selection Committee comprised three members, selected by Stamford (pp1-2). Factors considered by the Selection Committee in assessing each of the alternative designs included the requirements of the Brief to address commercial objectives, planning objectives and controls, and design features. Design features commented on by the Selection Committee included: setbacks to the former Health Department building, podium height on Macquarie Street, setback variation implications, and height control compliance. 5. It is evident from the Competitive Design Alternatives Report that while the focus of the Selection Committee was on the building itself in terms of its design features, capitalisation on views, cost and marketability, there was some focus on its locational context in terms of the adjacent heritage items and Macquarie Street streetscape. 6. In terms of the winning CHROFI design, which Stamford argues is substantially the same design for which approval is now sought, changes to it made at the suggestion of the Selection Committee during the competitive design process resulted in a revised scheme which the Committee considered was "more in keeping with the context of Macquarie Street, and is more sympathetic to surrounding heritage items" (p13). The revised scheme was also considered to be more respectful of the former Health Department building, particularly when viewed from Albert Street, providing "an appropriate setback to this building" (p13). Whilst further refinements to detail were suggested by the Selection Committee, the winning design was considered to be "the best, most dignified fit in response to the Macquarie Street context" (p14). In summary, the Committee considered that the winning design showed respect for the heritage streetscape and item on the site, demonstrated a "timeless quality and restrained elegance", considered financial benefit by orientating apartments to views and having a relatively low construction cost, had greater exposure to Macquarie Street, and complied with the key planning controls for the site, particularly in terms of height and the sun access plane (p15). 7. The Competitive Design Alternatives Report concluded that the winning design displayed design excellence as then defined by cl. 26 of the 2005 LEP, in particular having a high standard of architectural design with materials and detailing appropriate to the building type and location, integrating with the heritage streetscape of Macquarie Street; a form that would improve the public domain around the former Health Department building; and that would not detrimentally impact on view corridors identified in the relevant development control plan (p15). The report also commented on compliance with clause 6.21 (4)(d) of then draft LEP 2011 (now reflected in the 2012 LEP) stating the winning design addressed the relevant considerations of that clause in terms of heritage issues, streetscape constraints, bulk, massing and modulation, street frontage heights, accessibility, impact on the special character area and principles of ecologically sustainable development (pp15-16). The report concluded that the winning design exhibited the design excellence required to achieve the 10% height bonus, and concluded (p16): Based on the significant design excellence process undertaken to date, and the circumstances of the site (constrained by a height limit, sun access plane and setbacks) it is also requested that the [CSPC] support a formal waiver of a Stage 1 DA, and endorse the lodgement of a detailed design DA based on the Choi Ropiha Fighera scheme. 1. At the time the competitive design process was conducted the applicable local environmental plan was the 2005 LEP, and the provisions for demonstrating design excellence were contained in section 12 of the Central Sydney Development Control Plan 2006 (the 1996 DCP), including requirements for the conduct of an architectural design competition or competitive design alternatives. Those provisions were transferred to the Sydney Competitive Design Policy 2011, which was a standalone Policy exhibited with the draft LEP in 2010. As explained in the Council Planning Policy Sub-Committee report of 7 May 2012 (Ex C, p 30), that course was adopted because it was not considered appropriate for a local environmental plan to refer to a development control plan particularly when a development control plan may be amended from time to time in a process different to that applicable for a local environmental plan. That report also noted that the 2011 Competitive Design Policy was "a refinement of existing procedures relating to design integrity assessment". 2. The Competitive Design Policy referred to in cl 6.21(9) of the 2012 LEP has been in force since 12 March 2012 and was modified on 9 December 2013. The version of the Competitive Design Policy in force at the time the development application was lodged was the March 2012 version, as referenced in the definition in cl 6.21(9) of the 2012 LEP at that time. It was common ground that the modifications made to the Competitive Design Policy in 2013 are not relevant to the present application. 3. Both the 1996 DCP and the City of Sydney Competitive Design Policy (CDP) provide alternatives for the "competitive process" as it was referred to in the 1996 DCP, and the "competitive design process" as referred to in the CDP, in the form of either a design competition, or the preparation of design alternatives on a competitive basis. Section 12.2 of the 1996 DCP provided the requirements for a design competition, and section 12.3 the competitive design alternatives process. The provisions of the CDP are more detailed; section 4.1 contains the provisions for a competitive design alternatives process. 4. The central requirements common to both documents for a competitive design alternatives process are as follows: 1. provision of a minimum of three competitive design alternatives prepared by different architectural firms who can demonstrate experience in the design of high quality buildings, which should provide "at a minimum, an indicative design solution for the site" (1996 DCP 12.3.1, 12.3.2; CDP 4.1(1)). The 1996 DCP goes on to require at 12.3.2, that each alternative provide "sufficient detail to demonstrate that it is a feasible development option and can achieve design excellence"; the CDP requires at 4.1(2) that each alternative provide "sufficient detail to demonstrate that it is a feasible development option and achieves design excellence in accordance with the approved Design Excellence Strategy"; 2. an observer from the consent authority (1996 DCP 12.3.3; CDP 4.1(2)); and 3. submission of a Competitive Design Alternatives Report that includes each of the design alternatives considered, an assessment of the design merits of each alternative, sets out the rationale for choice of preferred design and demonstrates how this better exhibits design excellence, and includes a copy of the brief issued to the architectural firms (1996 DCP 12.3.4, 12.3 5; CDP 4.3(1), (2)). 1. Additional provisions in the CDP include a requirement that the designer of the winning scheme be appointed as the Design Architect to prepare the development application and design drawings, and maintain continuity during the construction phases (5.1). 2. The 1996 DCP notes that the competitive process "can be undertaken at either the development plan stage or the development application stage" (12.1). The Competitive Design Alternatives Report is to be submitted prior to the submission of "the relevant development plan application or development application" (12.3.4); and the consent authority may advise the applicant "whether it endorses the process and outcome in the form of pre development plan or pre development application advice" (12.3.6). 3. For the CDP, the competitive design process is to be undertaken "prior to the detailed development application stage (Stage 2 Development Application)" (1.1(2)); and is to be undertaken in accordance with a Design Excellence Strategy, specified in the following terms (1.2): (1)The competitive design process is to be undertaken in accordance with a Design Excellence Strategy approved by the Consent Authority as part of an associated site specific DCP or concepts stage development application (Stage 1 development application). (2) The Design Excellence Strategy is to define: (a) The location and extent of each competitive design process; (b) The type of competitive design process(es) to be undertaken: (i) an architectural design competition, open or invited; or (ii) the preparation of design alternatives on a competitive basis. (c) The number of designers involved in the process(es); (d) How architectural design variety is to be achieved across large sites; (e) Options for distributing any additional floor space area or building height which may be granted by the consent authority for demonstrating design excellence through a competitive design process. 1. The Competitive Design Alternatives Report is to be submitted prior to the submission of the relevant Stage 2 Development Application (4.3(1)), and the consent authority will advise the applicant whether it endorses the process and outcome and whether it fulfils the requirements of the competitive design alternatives process in the form of pre-development application advice (4.3(3)). Where a competitive design process winning scheme is subsequently developed or modified a Design Integrity Assessment (DIA) is required to be submitted with the application, its purpose being to inform the consent authority on whether the proposal (development application or modification application) is equivalent to or an improvement on the design excellence qualities of the winning scheme (5.2(1), (2)). 2. Stamford submits that the process undertaken has complied with the requirement in section 1.1 of the CDP that a competitive design process be undertaken prior to the detailed development application stage, and that the requirement in section 1.2 for a competitive design process to be undertaken in accordance with a Design Excellence Strategy approved by the consent authority as part of an associated site specific DCP or Stage 1 DA must be read subject to the dispensation in the 2012 LEP. In any event, Stamford submits that the process adopted has complied with the requirements of section 1.2(2). Stamford submits that 4.3 of the CDP is to be contrasted with the 1996 DCP policy which at 12.2.8 and 12.2.10 imposed more onerous requirements in the form of a veto by the consent authority as to the competition brief. Stamford submits that the process undertaken was equivalent to an "invited" competitive design alternatives process specified in section 2.1(1)(c), and that the requirements of 4.1, 4.2 and 4.3(1) of the CDP were met. 3. Mulpha submits (p 9) that a competitive design process is defined in cl 6.21 of the 2012 LEP as that in the CDP, and the proposal has not been the subject of that process as defined. A design competition was carried out in relation to the previous development application for a different proposal, under the 2005 LEP and 1996 DCP, and completed in May 2011, before the CDP was in force. Findings 1. Clause 7.20(3) permits the consent authority to decide that a site specific DCP is not required either because the consent authority is satisfied that such a plan is unreasonable or unnecessary "in the circumstances", or because the consent authority is satisfied that the development meets all the requirements of cl 7.20(3)(a)-(d). The latter is clearly not the position in this application. In our view, consideration of whether a site specific DCP is unreasonable or unnecessary is not limited by reference to cl 7.20(3) to cases of low impact development such as alterations and additions to an existing building. Clause 7.20(3) does not in terms limit the exemption to proposed development that meets cl 7.20(3) (a)-(d); and if that were its intention, there would be no need to include the provision for an exemption where the consent authority is satisfied that a plan would be "unreasonable or unnecessary" in the circumstances. 2. In considering what might be the limits of the dispensation provision in cl 7.20(3), the most relevant starting point is to consider the purpose of such a site specific DCP. A development control plan prepared pursuant to cl 7.20(2) would be the development control plan that would apply to the site rather than the general 2012 DCP (s 74C(2)). As such, its purpose would be to provide the guidance as articulated in s 74BA and s74C(1) of the Act (discussed further below) for assessment of development on land identified as significant by cl 7.20(2) because of its size, location and the height of the proposed development. One factor that would be relevant in that consideration is whether that guidance would simply be duplicating matters already addressed in other planning controls or processes. 3. That is in essence the approach adopted by Stamford. There are essentially two limbs to Stamford's argument that a site specific DCP is unreasonable or unnecessary: first, that the 2012 DCP provides the detailed provisions for the site in relation to the Macquarie Street SCA as well as street frontage heights and setbacks, and secondly, that the history of the proposal and its development through the competitive design process and consideration by the Council has provided the site specific guidance that could be expected in a site specific DCP. For the reasons outlined below, we are not satisfied that either consideration supports a conclusion that a site specific DCP is unreasonable or unnecessary in the circumstances. 4. The requirements to be addressed in a site specific DCP are specified in cl 7.20(4) of the 2012 LEP. We accept that it would be open in an appropriate case to conclude that a development control plan of general application has addressed those matters for a particular site. We would not accept the Council's submission that the 2012 LEP and 2012 DCP were a package of planning documents and so the reference in cl 7.20 to a "development control plan" could not be a reference to the 2012 DCP: if that were so, cl 7.20 would have limited if any application. The possibility that relevant provisions in the 2012 DCP could address the matters specified in cl 7.20(4) was referred to in a report to the meeting of the CSPC (8 March 2012) by the Director City Planning Development and Transport (Ex C tab 12). The issue is whether the provisions of the 2012 DCP have done so. If they have done so, a separate issue would then arise as to whether any non-compliances with those provisions would be appropriate. 5. Mulpha submits that the 2012 DCP does not address the matters specified in cl 7.20(4) (b), (c)(iv) and (xi), and does not provide site specific guidance for the matters in cl 7.20(4)(c)(ii) or (iii). The Macquarie Street SCA locality statement at section 2.1.6 of the 2012 DCP provides supporting principles for development, for an area stretching from the Cahill Expressway to King Street. The Specific Areas provisions in section 5.1 apply to the whole of Central Sydney as identified on the Specific Areas Map (Figure 5.1); the only provisions specific to the site are those in section 5.1.3 Street frontage heights and setbacks for Special Character Areas, in particular those in Table 5.1 and Figure 5.15. 6. Mr Harrison, Ms Morrish and Dr Lamb agreed that the character of each block in the SCA is different, and the block on which the site is located is lower in scale than the other blocks forming the northern part of the SCA (Ex C11, p5). That is reflected in the specific provision for each part of the SCA in Table 5.1 and the area specific figures. It was also evident on the view. 7. The evidence in these proceedings has identified issues (discussed in detail below) as to impacts of the proposed development on view corridors, internal amenity and external privacy impacts of the proposed residential development in the podium; the location of the proposed tower in terms of its setbacks to Macquarie Street and Albert Street; and impacts of the proposed tower on the heritage item on the site and those in the locality. The 2012 DCP does not provide site specific guidance on any of those matters, other than the street frontage height provision in Table 5.1 and the setback above street frontage height provision in Figure 5.15. We are not persuaded that the provisions of the 2012 DCP can be regarded as addressing the matters identified in cl 7.20(4)(b), or (c)(ii), (iii), (iv), (vii), (xi) or (xii) so as to make a site specific DCP unreasonable to unnecessary. 8. On the second aspect of Stamford's submission, we agree that the history of consideration of a specific proposal could support a conclusion that preparation of a site specific DCP is unreasonable or unnecessary. However, we are not satisfied that this is so in the circumstances of this proposed development, based on both the differences in process, and the issues remaining unresolved. 9. While we accept that the process undertaken met the requirements of the 1996 DCP for a competitive design alternatives process as specified in section 12.3 of the 1996 DCP, it did not meet the requirements of the CDP that had been adopted by the Council before the development application was lodged. 10. A key difference between the former 1996 DCP and the current CDP requirements is that the competitive process is to be based on a Design Excellence Strategy which has been approved by the consent authority as part of an associated site specific DCP or concepts stage development application. That is reinforced by the requirement in 4.1(1) of the CDP that each alternative emerging from the competitive design process demonstrate that it achieves design excellence "in accordance with the approved Design Excellence Strategy", and the requirement in 4.3(2)(c) that the Competitive Design Alternatives Report demonstrate how the preferred design best exhibits design excellence "in accordance with the provisions of [cl 6.21(4)] and the approved Design Excellence Strategy" . The site specific DCP and competitive design process go hand in hand, with the former being required prior to the latter. 11. A further consideration is that under the 1996 DCP it was discretionary for the Council to advise the applicant whether it endorsed the process and outcome in the form of pre DA advice. The current Policy now requires this (4.3(3)). There is no indication on the evidence before the Court that this occurred as a formal Council or CSPC decision. Furthermore, the 1996 DCP did not, as the CDP does, require that where a winning scheme is developed or modified, a Design Integrity Assessment (DIA) is to be submitted with the application (5.2(1)), to inform the consent authority on whether the proposed DA is equivalent to or an improvement on the winning scheme. There was no information before the Court to suggest this happened. 12. As noted above, Stamford also relies on the letter of 30 March 2010 stating that the Director of Planning and Regulatory Services would request the CSPC to waive a Stage 1 process if an appropriate design excellence process was completed, a design solution achieving the highest design excellence was selected, and a subsequent development application was lodged complete in detail and resolution. However, that statement was made before the competitive design process was undertaken, in accordance with the controls then applicable. 13. The controls had changed by the time the 2013 DA was lodged. In response to the lodgement of the 2013 DA, the Director City Planning Development Transport wrote on 10 June 2014 (Ex C2, p 396) to Stamford noting the history of the site and the scheme being the winning entry of the 2011 competitive design process, and stating that, in accordance with the provisions of cl 7.20(3) of the 2012 LEP, a Stage 1 DA to establish the appropriate parameters for future redevelopment of the site, or a written request that the consent authority waive the requirements of cl 7.20 would be required, including justification as to why preparation of a development control plan or Stage 1 DA would be unreasonable or unnecessary. The letter continues: It should be noted that whilst the provisions of Clause 7.20 of SLEP 2012 allow the applicant to request a waiver of the requirement of the preparation of a development control plan/Stage 1 DA, this is a decision of the consent authority (being the CSPC) taking into account any recommendation of the Director City Planning. 1. The letter identified a number of aspects of the proposal that required further design refinement including treatment of the southern elevation, non-compliances with eastern and northern setback requirements, insufficient solar access for the residential apartments, inadequate private and communal open space, screening treatment on Macquarie Street, and the ground floor pedestrian link. The letter does not state that a recommendation would be made to waive the requirement for a site specific DCP. Having regard to the change in the planning controls, and the approach of the Council officers to the 2013 DA in the context of those controls, in our view limited reliance can be placed on the letter of 30 March 2010. 2. The issue is whether the history of the development of the proposal, including the competitive process undertaken in 2010 and 2011, make it unreasonable or unnecessary now to have a site specific DCP or Stage 1 DA. The matters that would be addressed in a site specific DCP are stated in cl 7.20(4) of the 2012 LEP. The documentation to be provided is listed at section 3.3.8 of the 2012 DCP, which includes a requirement for a site, context and development options analysis that documents at least three different and realistic site development options and an analysis of each option (3.3.8(2)) and a design excellence strategy (3.3.8(3)). 3. There are fundamental planning and contextual matters that would be addressed in the provision of the required documentation and that would be resolved as part of a process of formulating a site specific DCP for the site. Those matters, which are discussed in detail below, include the building height; the appropriate upper level setbacks from Macquarie Street and Albert Street having regard both to the location of the site in the SCA and view and privacy impacts; and whether a tower is appropriate in the context of the heritage item on the site and those in its vicinity. 4. While there has been a competitive process in which all the designs had a tower, at a time when the applicable controls specified a 30m setback, the issue of what is the appropriate setback for Macquarie and Albert Streets remains a live issue, in terms of heritage impacts, view loss, and relationship of the development to its context. We are not persuaded that it is unreasonable or unnecessary to have a site specific DCP or a Stage 1 DA and, to the contrary, we are satisfied that there would be a significant benefit in addressing the matters identified in cl 7.20(4)(b), (c)(ii), (iii), (iv), (v), (vii), (xi) and (xii) in that form. 5. The competitive design process undertaken by Stamford in 2010 and 2011, as summarised above, is also relevant in consideration of whether the proposal exhibits design excellence as required by cl 6.21 of the 2012 LEP. That is the next issue to which we now turn. Design excellence: cl 6.21 1. The Council contends (contention 8) that the proposed development does not exhibit design excellence pursuant to the requirements of cl 6.21(3) and (4) of the LEP. As a consequence, the proposed development is not entitled to the 10% additional building height permitted under cl 6.21(7)(a), and so the proposal does not comply with the 55m building height development standard. Mulpha submits that development consent cannot be granted unless the proposal both exhibits design excellence and has been the subject of a "competitive design process" as defined in cl 6.21; and neither requirement has been met. Stamford submits that cl 6.21 is satisfied, on the basis that there was a competitive design process, and that design excellence is demonstrated by incorporation of the matters specified in cl 6.21(4) in the development application. 2. Clause 6.21 imposes two barriers to the granting of development consent for development to which the clause applies, namely development involving the erection of a new building or external alterations to an existing building on land to which the 2012 LEP applies (cl 6.21(2)). The first is that imposed by cl 6.21(3), that development consent must not be granted to such development "unless, in the opinion of the consent authority, the proposed development exhibits design excellence". If the consent authority is not of the required opinion, development consent cannot be granted: Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69 at [88]. The factors which the consent authority must consider in forming the opinion required by cl 6.21(3) are listed in cl 6.21(4). 3. The second threshold provision is that imposed in cl 6.21(5), which applies to some specified types of development to which cl 6.21 more generally applies. It was common ground that the proposed development falls within cl 6.21(5)(a) and (c) and so cl 6.21(5) applies. Clause 6.21(5) provides that development consent must not be granted "unless a competitive design process has been held in relation to the proposed development". Clause 6.21(6) provides the circumstances in which a competitive design process is not required under subclause (5). 4. Clause 6.21(7) has a different operation, permitting additional height or FSR for a building demonstrating design excellence. 5. In summary, in order for development consent to be granted to this proposed development, the Court, as consent authority, must form the opinion that the proposed development exhibits design excellence, based on consideration of the matters listed in cl 6.21(4): cl 6.21(3). Secondly, a competitive design process must have been held in relation to the proposed development, unless the Court is satisfied that cl 6.21(6) applies: cl 6.21(5). If those requirements are met, there is power to grant consent. If the application satisfies cl 6.21(7), namely that it is for "a building demonstrating design excellence", up to an additional 10% height bonus can be permitted. Clause 6.21(5) 1. We deal first with cl 6.21(5). In summary, Stamford's position is that cl 6.21(5) is satisfied on the basis that it undertook a competitive design alternatives process in 2010 with a winning scheme selected in 2011, and that winning scheme is substantially similar to the proposed development. The Council does not put in issue that there has been a competitive design process of which the present proposal (in general terms) was the winner. Mulpha submits that a competitive design process is defined in cl 6.21 as that in the City of Sydney Competitive Design Policy, and the proposal has not been the subject of that process as defined. A design competition was carried out in relation to the previous development application for a different proposal, under the previous 2005 LEP and 1996 DCP, and completed in May 2011, before the CDP was in force, and it is not open to consider that the previous competitive process satisfies the present requirements in the CDP. 2. In addressing this issue, we start with the definitions in cl 6.21(9): building demonstrating design excellence means a building where the design of the building (or the design of an external alteration to the building) is the winner of a competitive design process and the consent authority is satisfied that the building or alteration exhibits design excellence. competitive design process means an architectural design competition, or the preparation of design alternatives on a competitive basis, carried out in accordance with the City of Sydney Competitive Design Policy. 1. We note at the outset that, while cl 6.21(7) uses the defined term "building demonstrating design excellence", subclauses 6.21(3), (4), (5) and (6) refer to the development, rather than the building. 2. Stamford submits that the term "building demonstrating design excellence" addresses both the process, and whether the development exhibits design excellence in terms of the matters listed in cl 6.21(4). However, that must be read subject to the dispensing power conferred by cl 6.21(6), and the fact that that term was added to cl 6.21(9) on 4 July 2014, after the present development application was lodged. 3. In that regard, Stamford relies on the savings provision in cl 1.8A of the 2012 LEP, which provides that a development application made in relation to land "to which this Plan applies" before it commenced is to be determined as if the Plan had been exhibited but had not commenced. Stamford submits that cl 1.8A should be read as referring to "the Plan as amended", so that the addition of the definition in cl 6.21(9) and the introduction of a different Policy would not apply to this development application. Even if this is not how cl 1.8A works, the earlier version of the Policy as at the time of application would be a circumstance relevant to whether a competitive design process is unreasonable or unnecessary in the circumstances. In any event, in Stamford's submission the changes to the Policy are not material. On that basis, we have addressed the provisions of the current CDP (Ex C3, tab 6). 4. Mulpha submits that the relationship between the requirement for a site specific DCP under cl 7.20 and the requirement for a competitive design process under cl 6.21 is important: a site specific DCP is to be prepared before the competitive design process to identify the appropriate use or mix of uses, and other detailed planning controls suitable for the site; and that is then followed by a competitive design process to select the most appropriate building design for the site consistent with the site specific DCP. Instead, the process has been subverted by starting with the design that the applicant asserts is best for the site and to which has been applied an old competitive design process, but one conducted without the missing essential step of a site specific DCP or its equivalent (a Stage 1 DA). 5. There are no transitional provisions that render that process a "competitive design process" as defined in cl 6.21. Further, the design alternatives process was carried out in relation to a previous and now withdrawn development application in relation to different controls to those in the 2012 LEP and DCP and for that reason alone cannot be a competitive design process within the meaning of cl 6.21. To construe "competitive design process" in the LEP as including competitive design processes carried out under and by reference to superseded planning controls that are no longer applicable would make no sense of cl 6.21 or the design excellence process. 6. Mulpha points to the difference in planning controls, in particular the former requirement for a 30m setback, and the difference in allowed street frontage height (45m under the 1996 DCP, 22.8m on Macquarie Street and lower within the footprint of the former Health Department building) and the different basis on which the 2012 LEP now determines the height of buildings, and submits that it is not possible to know what difference those changes might have made to the parameters of the competition. 7. Mulpha submits that it is not open to consider that the previous competitive process satisfies the present requirements in the Policy. The definition of "building demonstrating design excellence" requires that the design of the building is the winner of a competitive design process, which is defined by reference to the City of Sydney Competitive Design Policy, which at the time the DA was lodged was the policy as adopted on 9 December 2013. The former provisions of the 1996 LEP, 2005 LEP and 1996 DCP referring to a competitive process are quite different and less stringent and prescriptive that the 2012 LEP cl 6.21 and underscore the legislative decision taken in the 2012 LEP to introduce a different and more rigorous process in the CDP. 8. Mulpha submits that cl 6.21(6) is not intended to be and does not operate as a savings and transitional clause so as to allow the applicant to rely on a superseded competitive design process, but only allows the requirement for a "competitive design process" as defined in the LEP to be waived where any such competitive design process is unreasonable or unnecessary or the indicia in (a)-(d) apply. Mulpha submits that none of (a)-(d) could reasonably be said to apply here, and neither can it be said that such a process would be unreasonable or unnecessary in the circumstances (p 12). The conclusion that it is unnecessary or unreasonable for a "competitive design process" as defined in the LEP to be undertaken is highly unlikely to be correct or reasonably open to the Court on the evidence, as this development trips two of the four triggers for a competitive design process in cl 6.21(5), namely height above 55m and development in respect of which a site specific DCP is required by cl 7.20, which is suggestive that to carry out competitive design process is neither unreasonable nor unnecessary. The Court should not be satisfied that it is unreasonable or unnecessary to require a competitive design process, because the site is unique and sensitive, surrounded on three sides by heritage buildings and on the fourth side on the other side of the road by The Domain, and is ringed and surrounded by heritage items. 9. While the Council does not put in issue that there has been a competitive design process of which the present proposal was the winner, its position is that the proposed development does not exhibit design excellence and the Court cannot grant consent having regard to cl 6.21(3). The determination of design excellence is a matter independent of the competitive design process, and the Court must have regard to the matters at cl 6.21(4) in addition to any other matters it considers relevant, in determining whether or not the proposal exhibits design excellence. 10. In reply, Stamford submits that Mulpha's approach puts form over substance. Stamford acknowledges that there are differences in the planning controls. However, the height at street frontage was more generous under the 2005 LEP than now, and the design did not adopt the then applicable maximum. On its case, the height of the building is the same as it would be regarded under the 2005 LEP. In any event these differences are not so material so as to preclude the view being taken that a formal process is unreasonable or unnecessary. It was also Stamford's argument that a development of this complexity and value by its very nature takes many years to develop and it is not reasonable to undertake a new competitive design process, which by its nature leads to designs which depart from planning controls and justify these departures, based on changes to the Council's LEP and DCP after the process was finalised. In essence, Stamford contends the underlying design considerations, such as site context and amenity considerations, have not materially changed, albeit controls may have. Findings 1. At paragraphs [83]-[93] above we have outlined the competitive design process undertaken by Stamford in 2010 and 2011, and the relevant competitive design process provisions of the 1996 DCP (applicable at the time that process was undertaken) and those of the CDP referenced in the 2012 LEP. As discussed at paragraphs [112]-[114] above, while we are satisfied that the competitive design process met the requirements of the 1996 DCP at the time it was undertaken, it does not meet the requirements of the CDP. Both at the time the development application was lodged, and at the date of our decision, cl 6.21(5) required that a "competitive design process" has been held, and that term is defined in cl 6.21(9) by reference to the CDP. 2. Mulpha's position is that that conclusion means that cl 6.21(5) is not satisfied and there is no power to grant consent. In our view, that approach gives insufficient consideration to cl 6.21(6) which enables the consent authority to determine that a competitive design process would be unreasonable or unnecessary in the circumstances. 3. In considering whether a competitive design process would be unreasonable or unnecessary in the circumstances, we accept that there would be significant costs and time involved and duplication of much of the design effort already undertaken in developing options for the site. Many of the design parameters and relevant considerations, such as the sensitive location of the site in an area of significant heritage value, the overall maximum height with or without bonuses, and the need to justify a tower component at all given the 2012 DCP setbacks, would remain the same. It may be that such a process would result in a similar concept to the winning design which arose from the former competitive design process. 4. However, it is not the intent of either the competitive process requirements of the 1996 DCP or those of the current CDP to develop a design to the detail required for DA approval, rather that the design be the basis for developing such detail, as a step in a process. What the design arising from a competitive design process does not and cannot achieve is the detail which arises from the further development of a competition winning design into an approvable development. The requirements of the earlier and the current competitive design processes to prove design excellence require that the winning concept design be further developed on the basis of site specific controls in which more detailed design considerations can be addressed. These include side, rear and front setbacks at all levels, mix of land uses and the amount of height above 55m that should be granted (if any) to determine a final building envelope and apartment layouts which meet the design excellence requirements of cl 6.21(5) by having regard to relevant planning considerations such as view impacts and residential amenity. 5. We accept that there are differences between the winning design from the competitive design process and the present proposal, as identified at pp 32-33 of the SEE (Ex A vol 1, tab 2). Those differences include the increase in street frontage height; the change from the earlier orthogonal shape to the present angular shape; and increase in number of units from 85 to 102 and changes to provision of private and common open space. However, in broad terms the development is generally consistent with that emerging as the winning design from the competitive process, and is generally reflective of a development form that could be expected to be approved by the Council for the site given the key planning controls that apply as interpreted by the Council; namely a tower element of at least 55m in height setback from Macquarie and Albert Street at its upper levels, and retention of the former Health Department building. However, having regard to our conclusion above that a site specific DCP is required, there remains a possibility that what might be settled upon in the parameters developed through a site specific DCP or Stage 1 DA could diverge from the approach adopted so far by the Council, and reflected in the winning design. If so, it would be inconsistent with the requirement in the CDP that the competitive design process be undertaken in accordance with a Design Excellence Strategy, and as part of an associated site specific DCP or concepts stage development application, not to require a competitive design process. In the absence of a site specific DCP or Stage 1 DA, we are unable to be satisfied that a competitive design process would be unreasonable or unnecessary. Clause 6.21(3) 1. A further requirement in cl 6.21 is that imposed by cl 6.21(3), that consent cannot be granted unless, in the opinion of the consent authority, the proposed development exhibits design excellence. Clause 6.21(3) does not use the defined term "building demonstrating design excellence", and it is arguable that to reach the state of satisfaction that the proposed development "exhibits design excellence" is not dependent on the design having won a competitive design process, but rather solely on consideration of the factors specified in cl 6.21(4). 2. That is Stamford's approach to cl 6.21(3). Stamford submits that cl 6.21 must be considered as a whole, and that what 6.21(3) requires is that the consent authority form an opinion, having regard to the matters specified in subclause (4), whether or not the proposed development "exhibits design excellence". The term "design excellence" is not defined, and its meaning must be derived from the range of factors identified as mandatory relevant considerations in subclause (4). 3. Stamford submits that the Court should be so satisfied, based on the consideration of the proposal by the Council's Design Advisory Panel on 8 August 2014 which commented that the project "exemplifies how a complex issue can be resolved with the hand of a skilful and innovative architect" (Ex C2, vol 1, p392), and the evidence of Mr Harrison and Mr Cirillo. 4. The Council accepts Stamford's construction of cl 6.21, and while it has no issue with there having been a competitive design process, in its submission the issue of "design excellence" is independent of the competition process, and requires consideration of the factors in cl 6.21(4). 5. The experts disagreed as to whether the proposed development exhibits design excellence. Mr Harrison undertook a detailed consideration of the cl 6.21(4) factors in his individual statement of evidence (Ex D) at pp 130-136. Particular matters addressed by Mr Harrison included: * improvements to the public domain; * care taken in the design to protect key views within the constraints of the site; * the suitability of the zoning for residential and retail/commercial uses; * the creation of space around the heritage item and views around and above the heritage item and consistency with the guidance provided by the Heritage Design Detail Report of Graham Brooks & Associates; * the provision of a new building of medium height (19 storeys) compared to nearby tall towers with an appropriate location for the mid-rise building element and appropriate separation for it from Quay Apartments and the heritage item on site; * appropriate setbacks; * provision in the proposed building envelope of a better outcome in terms of solar access, view sharing and residential amenity than a building that strictly complied with the controls; * design to minimise environmental impacts; * apartment layouts providing for cross-ventilation and access to daylight; * compliance with parking and access requirements; and * an acceptable impact on the SCA. * Mr Harrison maintained his position that the proposal achieves design excellence and is entitled to the bonus height because it addresses all of the considerations in cl 6.21(4) (Ex C11, p50). Mr Cirillo was of a similar opinion (Ex C10 pp22-23). 1. Ms Robinson and Mr Chambers disagreed. Ms Robinson noted, in particular, the sensitive heritage context and location in a SCA, view impacts, the proposed mix of uses, the issues with front, side and rear setbacks, inadequate private open space and the amenity of the apartments, particularly those in the podium. Mr Chambers considered that the proposed tower is inappropriate for the site, and that the proposal is inconsistent with the height control, the requirements for the SCA, and the front, rear and side setback controls, and is incompatible with the nearby heritage buildings (Ex C10). 2. The matters listed in cl 6.21(4) are similar, but not identical, to those listed in cl 7.20(4). There is no reference to incorporation of high quality public art (cl 7.20(4)(c)(xiv)). There is an additional requirement to consider "whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved" (cl 6.21(4)(a)), consistent with the objective of the clause to "deliver the highest standard of architectural, urban and landscape design" (cl 6.21(1)). 3. There was no issue taken with the architectural quality of the proposed building, as reflected in the comments of the Council's Design Advisory Panel. The central area of dispute between the various experts relates to the appropriateness of that design in its context, and on that there was a significant divergence of views. Given the relationship now specified in the CDP between the Design Excellence Strategy, the competitive design process and the development of a site specific DCP; and the possibility that an ultimate building design may change as a consequence of undertaking a site specific DCP or Stage 1 DA process, it is not appropriate in our view to express a concluded view on cl 6.21(3). Clause 6.21(7) 1. In contrast with cl 6.21(3), (4), (5) and (6), which require consideration of the proposed "development", the focus of cl 6.21(7) is on the "building". That was also the position with the form of cl 6.21(7) applicable at the date the development application was lodged. 2. As noted above, Stamford's position is that the proposed development addresses the cl 6.21(4) matters and thus exhibits design excellence, and was the subject of a competitive design process pursuant to cl 6.21(5), and accordingly qualifies for the 10% bonus under cl 6.21(7). Mulpha's position was that unless the competitive design process undertaken in 2010 and 2011 was a competitive design process compliant with the Competitive Design Policy as defined in cl 6.21(9), cl 6.21(7) simply could not be met. The Council's position was that the proposed development does not exhibit design excellence pursuant to the requirements of cl 6.21(3) and (4) of the 2012 LEP, and as a consequence, the proposed development is not entitled to the 10% additional building height permitted under cl 6.21(7) If the use of different terms in cl 6.21, namely "building…" in cl 6.21(7) and (9), and "the development…" in cl 6.21(3), (3), (5) and (6) is deliberate, it would appear to us that whether or not the proposal addresses the cl 6.21(4) factors would not be relevant to the cl 6.21(7) issue. 3. However, we do not consider it necessary to decide this point. Even if Mulpha is not correct in its analysis that, because the competitive process did not meet the requirements of the CDP, it is not open to decide that cl 6.21(7) could apply, we would note that cl 6.21(7) is not an entitlement, but confers a discretion on the consent authority to permit additional height up to 10% above the height limit otherwise applicable. Given the significant impacts on views, considered below, whether or not a tower could extend beyond 55m is a matter that could, and in our view, should, be canvassed in the site specific DCP or Stage 1 DA process. As noted below, while a site specific DCP could not extend the height limit set by cl 4.3 of the 2012 LEP, that discussion could form a basis for variation of the height development standard under cl 4.6 of the 2012 LEP. It could also determine whether the full 10% bonus permitted under cl 6.21(7) should apply. We simply do not know what might emerge from the site specific DCP process. 4. The next issue to consider is the setback requirements for the Macquarie Street and Albert Street frontages, and the side and rear boundaries. Non-compliance with setback controls 1. The proposed development has a variable setback above nominated street frontage height of between 6.2m and 8.0m on Macquarie Street, and between 3.0m and 19m on Albert Street, to the tower element which is 60.5m high; a setback of 3m from the southern (side) boundary to a height of 60.5m, and a nil setback from the western (rear) boundary from ground level for the entire height of the building. There is a 6m wide easement for light and ventilation along the eastern boundary of the adjoining Justice and Police Museum site. 2. The Council and Mulpha contend that the non-compliances with the setback requirements in the DCP are inappropriate in this location. Mulpha and the Council differ, however, as to what are the required setbacks for Macquarie Street and Albert Street. 3. Stamford accepts that the proposed development does not strictly comply with the 10m to Macquarie Street and 8m to Albert Street setback controls, and relies on the evidence of Mr Cirillo that the building presents a finely sculpted and angled form to the primary street frontage (Macquarie Street) and that the cantilevered tower form at Albert Street establishes a more appropriate spatial relationship with the heritage item on the site. Stamford submits that the setback to the southern boundary complies with the relevant controls, and that the setback to the western boundary is sufficient given the 6m wide easement for light and ventilation that has been obtained along the eastern boundary of the Justice and Police Museum. Stamford submits that the non-compliance with the setback controls is reasonable and supportable given the superior outcome achieved when compared to a compliant built form envelope, and the non-compliant setbacks were a fundamental part of the scheme that won the competitive design process and the scheme endorsed by the Design Advisory Panel. 4. There are three issues that require resolution: 1. what is the required setback above street frontage height on Macquarie/Albert Streets? This requires consideration of the provisions of the 2012 DCP, and in particular, a determination of whether the required setbacks are, as Stamford and the Council submit, 10m for Macquarie Street and 8m for Albert Street, or, as Mulpha submits, 30m for both; 2. whether or not the required setbacks are 30m, or 10m and 8m, are the non-compliances with those setbacks justified in the circumstances?; and 3. whether the agreed non-compliances with the side and rear setbacks on the southern and western boundaries are justified in the circumstances. 1. On the first issue, Mulpha contends that the 2012 DCP requires a 30m setback above the nominated street frontage height control for this section of Macquarie Street under the 2012 DCP, and that there are sound planning, heritage, urban design and public interest reasons why that control should be enforced; that it is not open to the consent authority (without first amending the 2012 DCP in the proper form and manner) to abandon, disregard or give little weight to the 30m setback control; and that the proposed significant reduction in the required setback is inappropriate for the location. 2. Stamford and the Council dispute that a 30m setback above the nominated street frontage height control applies to the site, and are in agreement that the applicable minimum setback is 10m above street frontage height on Macquarie Street, and 8m on Albert Street. However, the Council contends that the proposed reduction in setback from those controls, in the form of a variable setback of between 6.2m and 8m on Macquarie Street and between 3m and 19m on Albert Street, is inappropriate in this location. 3. Section 5.1 of the 2012 DCP applies to land identified as Central Sydney, which includes the site. Section 5.1.1 provides for street frontage heights and section 5.1.2 provides for building setbacks, including section 5.1.2.1 front setbacks and section 5.1.2.2 side and rear setbacks. Section 5.1.3 provides for street frontage heights and setbacks for Special Character Areas: 5.1.3 Street frontage heights and setbacks for Special Character Areas Sydney LEP 2012 identifies a number of special character areas that significantly contribute to the quality of the public domain and the distinctiveness of Central Sydney. Development in Special Character Areas can reinforce and enhance the existing character by responding to the nominated street frontage heights and setbacks. Objective (a) Enhance and complement the distinctive character of Special Character Areas with compatible development. Provisions (1) Minimum and maximum street frontage heights and front setbacks for buildings in or adjacent to a Special Character Area must be provided in accordance with Table 5.1 and as shown in Figures 5.12 to 5.19. Where the figure shows the entire site as shaded, additional storeys above the street frontage height is not permitted. (2) For development within a Special Character Area where the setback is not illustrated in Figures 5.12 to 5.19, setbacks above the street frontage height are to be a minimum of 8m. Smaller or weighted average setbacks are not acceptable. (3) For sites adjacent to a Special Character Area with a maximum building height of 55m, the street frontage height is to be 45m with a setback to the maximum building height as shown in Figure 5.12. Note: For the street frontage height setback for special character areas refer to Figures 5.12 to 5.19. (4) The street frontage height of any new development within a Special Character Area, or part thereof, not specified in Table 5.1 must comply with Section 5.1.1 Street frontage heights. 1. Table 5.1 provides that for the Macquarie Street SCA, the maximum street frontage height is: 45m for sites without heritage items; or the street frontage height of the heritage item on the site; and for 93-97 Macquarie Street, the street frontage of the highest heritage item on the same side of the street block in which the site is located. 1. It was common ground that the street frontage height determined in accordance with section 5.1.3 of the DCP is 22m, and that the proposed development complies. As noted by Stamford in submissions, there was broad consensus among the experts that the podium setback is not in contention and that the podium uses Transport House as an appropriate datum point. 2. Table 5.1 states that the setback above street frontage height is "As per Figure 5.15". Figure 5.15 (Ex C2, p 174) is: 1. Stamford submits that Mulpha's alleged non-compliance is a result of an incorrect interpretation of Figure 5.15 and that its construction of the 2012 DCP is flawed, for the following reasons: 1. while Figure 5.15 indicates the entirety of the site as shaded in blue, the site also contains dimensions for the street wall height control setback, and those dimensions are more specific than the shading and should properly prevail, and otherwise they would have no role to play. 2. when regard is had to Figures 5.14-5.19, the site is the only property where the blue shading and the nominated setbacks do not precisely align, providing support that the blue shading is a drafting error; 3. elsewhere on Figure 5.15 the blue shading to properties is specifically dimensioned as 30m from the street frontage and is overlaid on heritage items only including the former Treasury Building and Transport House. The blue shading elsewhere is also superimposed over heritage items only where it applies across a site; the other intervening non heritage items have blue shading and a 10m setback dimension from the street frontage; 4. the 2012 DCP is not an environmental planning instrument, but is a plan prepared and adopted by the Council; 5. following the public exhibition of the draft DCP the Council resolved on 14 May 2012 to approve an amendment to Figure 5.15 to make it clear that the relevant setbacks were 10m and 8m rather than 30m which was stated in the version that was publicly exhibited; 6. as a plan prepared and adopted by the Council, to the extent that there is any ambiguity the Council has both acknowledged the ambiguity and resolved it against the position adopted by Mulpha: 1. Council officers have consistently stated that there is a mapping error in Figure 5.15 and that 10m and 8m are the correct controls, in internal Council correspondence and Council correspondence with Stamford's representative, and in correspondence between Council officers and Heritage Council officers; 2. more formally through the Amended Statement of Facts and Contentions the Council has confirmed the setback controls; and 3. Council confirmed that position in correspondence of 29 September 2014 communicating its consent to Mulpha's joinder; and 1. the position adopted by Mulpha is inconsistent with the height controls for the site under the LEP 2012, which provides for a height control of 55m and FSR of 12.5:1. 1. Mulpha submits that the correct construction of Figure 5.15 and section 5.1.3 of the DCP is that, as the site is entirely shaded in blue, no additional height above street frontage height is allowed. The DCP must be construed in accordance with its language and objectively inferred intent, as an instrument made under the Act by reference to its terms in the context of the legislation which authorises it. Having regard to either the draft DCP as exhibited or Council memoranda or letters would be productive of legal error, and such matter should be excluded as irrelevant. In the alternative, if such material is to be considered as relevant for the construction exercise, the draft DCP as exhibited contained no 10m and 8m markings on Figure 5.15 and showed the whole of the site as shaded in blue. There is no evidence as to how the 8m and 10m markings came about. The significance of the colouring on Figure 5.15 is made clear in the text in section 5.1.3(1), and does not rely on the legend to Figure 5.15. 2. Resolution of this issue requires consideration first of the legislative provisions relating to development control plans, which are in Div 6 of Part 3 of the Act. Section 74BA states the purpose and status of a development control plan: (1) The principal purpose of a development control plan is to provide guidance on the following matters to the persons proposing to carry out development to which this Part applies and to the consent authority for any such development: (a) giving effect to the aims of any environmental planning instrument that applies to the development, (b) facilitating development that is permissible under any such instrument, (c) achieving the objectives of land zones under any such instrument. The provisions of a development control plan made for that purpose are not statutory requirements. (2) The other purpose of a development control plan is to make provisions of the kind referred to in section 74C (1) (b)–(e). 1. Under s 74C(1) the relevant planning authority may prepare a development control plan (or cause such a plan to be prepared) "if it considers it necessary or desirable": (a) to provide the guidance referred to in section 74BA (1), (b) to identify development as advertised development (so as to make additional but not inconsistent requirements to those imposed by the regulations in relation to development applications), or (c) to provide for (or exclude) public or particular advertising or notification of any of the following: (i) a development application for specified development (other than State significant development or designated development or advertised development), (ii) a request for the review of a determination of a development application where the applicant for review makes amendments to the development described in the original development application, (iii) an application for the modification of a development consent for specified development (including advertised development but not State significant development or designated development), or (iv) (Repealed) (d) in the case of a council—to specify criteria (in addition to but not inconsistent with any criteria prescribed by the regulations) that the council is to take into consideration in determining whether or not to give an order under Division 2A of Part 6, or (e) to make provision for anything permitted by this Act to be prescribed by a development control plan. 1. The role of a development control plan in providing guidance is confirmed in s 79C(3A) of the Act, which provides, inter alia, that if the provisions of a development control plan set standards with respect to an aspect of the development and the development application does not comply with those standards, the consent authority 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. That role is also confirmed by the relevant authorities, which establish that while the provisions of a development control plan serve as a focal point for, or constitute a fundamental element in, assessment of an application, they are not determinative (Zhang v Canterbury City Council (2001) 115 LGERA 373). 2. Provisions for the form, structure and subject-matter of development control plans, and the procedures for the preparation, public exhibition, making, amendment and repeal of development control plans are provided in Part 4 of the Regulation (s 74E(1)). The council must publicly exhibit a draft development control plan, for a period of at least 28 days (cl 18). Clause 21 provides: 21 Approval of development control plans (cf clause 20 of EP&A Regulation 1994) (1) After considering any submissions about the draft development control plan that have been duly made, the council: (a) may approve the plan in the form in which it was publicly exhibited, or (b) may approve the plan with such alterations as the council thinks fit, or (c) may decide not to proceed with the plan. (2) The council must give public notice of its decision in a local newspaper within 28 days after the decision is made. (3) Notice of a decision not to proceed with a development control plan must include the council's reasons for the decision. (4) A development control plan comes into effect on the date that public notice of its approval is given in a local newspaper, or on a later date specified in the notice. 1. The 1996 DCP provided a 30m setback above street frontage height for the site from Macquarie Street (section 2.4, Table 2.1, Fig 2.23). In October 2010 the draft DCP 2010 was approved for public exhibition. That draft required, in Fig 4.15 "Special Area G Setbacks Macquarie Street", a 30m setback above street frontage height from Macquarie Street (ex C, p223). The draft DCP was publicly exhibited between 2 February and 4 April 2011, together with the draft LEP, the draft Green Square Affordable Housing Program and the draft City of Sydney Competitive Design Policy (ex C, p 12). 2. Following the public exhibition, a report by the Director City Planning, Development and Transport to the Planning Policy Sub-Committee 7 May 2012 (ex C, tab 3) recommended that Council adopt the draft DCP, subject to a number of amendments. The report included Attachment A, Table –Recommendations for Draft DCP Changes, and Attachment B, a copy of the draft DCP as recommended to be adopted. The Table in Attachment A stated in relation to sections 4.1.3 Figure 4.15 Special Area G Setbacks (Macquarie Street), as the Objective or Provision Modification a "modified diagram", for the Proposed Objective/Provision "the diagram for the Special Character Area has been amended", with the justification for the change being stated as: The minimum setback in metres for the property on the corner of Alfred [sic] and Macquarie Streets has been amended to 8m for Alfred Street [sic] and 10m for Macquarie Street. 1. Attachment B includes in the revised version of the draft DCP section 5.1.3, and Figure 5.15. Figure 5.15 as shown in Attachment B (Ex M3, p 248) was: 1. At its meeting of 14 May 2012 the Council resolved to approve the amendments to the draft DCP recommended in the report (subject to some further amendments not relevant in this instance), and to adopt the draft DCP in Attachment B to come into effect once advertised in accordance with cl 21 of the Regulation and on the date that the draft LEP 2011 was made, and to repeal existing development control plans (ex C, p 212). 2. The Statement of Environmental Effects provides a comparison between the 1996 DCP and the 2012 DCP as published (Ex A vol 1, tab 2): 1. It would appear that there was a view within Council that the question of setback above street frontage was settled. In evidence is a Memorandum from a Council Specialist Planner to the Executive Manager Strategic Planning and Urban Design dated 7 May 2014 (Ex C tab 7), referring to the pre-DA discussion of March 2010 and noting that the then applicable 1996 DCP 30m setback would render the site undevelopable, and that the pre-DA advice generally supported redevelopment of the site but did not specifically refer to the requirement or lack of a 30m setback above street frontage from Macquarie Street. After recounting the history of the drafting, exhibition, and adoption of the 2012 DCP, and the lodgement and withdrawal of DA 2011, the memo states that the 2012 DCP "reduced the minimum setback above street frontage height requirement for the site from 30m to 10m for Macquarie Street", understood to be as a result of internal advice to amend the draft following exhibition, and referring to the map and table as reported to the May 2012 meeting of the Planning Development and Transport Committee. 2. There is also the letter from the Director City Planning Development Transport to Stamford dated 10 June 2014 commenting on aspects of the proposed development as presented in the 2013 DA lodged in December 2013 that required further design refinement, including statements that the proposed development is non-compliant "with the 10 metre setback requirement from the eastern (front) boundary of the site above the street frontage height/podium pursuant to Section 5.1.3 of SDCP 2012", and with the "8 metre setback requirement from the northern boundary of the site (to Albert Street)…" (Ex C2, p 398). 3. The correspondence relied upon by Stamford includes: 1. an email from Architectus to Council dated 13 November 2013, noting that they were preparing the DA for the site: Can I clarify something with you? In the previous DCP, there was a 30m tower setback control for the subject site, above the wall street height. I understand the intent was to change this in the new DCP, to require a 10m setback only. I remember the issue being discussed in the post-exhibition report on the new DCP, and I recall the report recommending a 10m setback to the tower on Macquarie Street. The special character provisions in the new Sydney DCP 2012 map (Page 17, Section 5) – see image below, say that the setback is to be 10m (in numbers) from Macquarie Street & 8m from Albert Street, but show the blue shaded setback area being the full depth of the site. It appears to be a contradiction and inconsistent with other sites on Macquarie Street – can you please confirm how to interpret these controls? Is it just a mapping error? 1. The response on the same date from the Manager Planning Assessment was that: "…it looks to me like an error in the plan. Knowing the history the intent is that the set back be as the numbers suggest not the colour" (Ex A vol 3, tab R); 1. there followed internal Council emails in November 2013, culminating in an email from the Policy Officer - Planning referring to p37 of Attachment A Modification to Figure 4.15 Special Area G Setbacks (Macquarie Street): "The minimum setback in metres for the property on the corner of Alfred and Macquarie Streets has been amended to 8m for Alfred Street and 10m for Macquarie Street", and stating: "…it is shown incorrectly on the diagram, but yes the intent following exhibition was to amend this setback" 1. (Ex C, tabs 5, 6); 2. an email dated 16 December 2013 from the Manager Central Sydney Planning, Strategic Planning and Urban Design, responding to an email from Architectus of the same date (Ex A vol 3, tab R), stating: "…I have confirmed that the modifications made to the DCP as described in Attachment A to the report considered by Council in March 2012 refer to a 10 metre tower setback to the Macquarie Street frontage, rather than the tower setback of 30 metres indicated by the blue shading. As stated in your email it would appear that there is a mapping error by not having the blue shading aligning with the setback figures marked on the plan." 1. That position was confirmed in correspondence between the Council and the Heritage Council in 2014, after the 2013 DA was lodged. On 12 February 2014 a Council Senior Planner advised the Heritage Division's Heritage Officer that "the notations on Figure 5.15 of the SDCP 2012 indicating a 10 metre tower setback control from Macquarie Street and a 8 metre tower setback control from Albert Street are the correct current planning controls for the site" (Ex C2, tab 3, p 476). On 10 July 2014 the Council's Manager – Planning Assessments wrote to the A/Manager Conservation of the Heritage Division in response to a request for written confirmation of the correct construction of the controls stating that the Council "interprets the SDCP 2012 setback control above the street frontage height for this site as 10 metres from the Macquarie Street frontage and 8 metres on the Albert Street frontage", and, as acknowledged in the email of 16 December 2013, "Figure 5.15 of SDCP 2012 contains a drafting error, with the shading illustrated on the map not reflecting the nominated numeric setbacks" (Ex C2, tab 3, p 549). Interpreting Figure 5.15 1. Mulpha submits that the DCP construction point should be determined based on the instrument itself as made and published by the Council. The red "lozenges" on Figure 5.15, possibly inserted to surround the 10m and 8m digits isolating the former Health Department building from the rest of the SCA, and appearing in the version of the DCP annexed to the recommendation of the Committee which was before the Council when it made the DCP, but which were removed prior to the DCP being published by the Council, are important. 2. In Mulpha's submission they show that the intention of the Council as at the date of making of the DCP on 15 May 2012 was actually to confine the area of operation of the 8m and 10m digits to the area of the heritage building as such, not to the remainder of 93-97 Macquarie Street which remained shaded blue at all times. Their removal from the DCP document after the Council resolution does not, in Mulpha's submission, gainsay their significance as an indication that insofar as the committee report evinced a rationale for the insertion of the 8m and 10m digits, it is one protective of the heritage values of the site in that it applies a lower street frontage height to the area immediately above the ealth department building and confines the relevance of tHeaHealth Department building and confines the relevance of those 8m and 10m digits to that part of the corner lot (leaving the remainder blue shaded and hence able to be built to the street frontage height of Transport House or around 22.8m). 3. There is a discrepancy between the version of Figure 5.15 in Attachment B to the report which was before the Council when it resolved on 15 May 2012 to adopt the DCP, and Figure 5.15 as it appears in the published version (Ex C2, p 174). There is no evidence as to how that change came about. 4. If it were necessary to decide which version of Figure 5.15 to apply, we would opt for the version that was the subject of the Council's resolution to adopt the DCP on 15 May 2012 in accordance with cl 21 of the Regulation, there being no evidence of any subsequent resolution. However, we note that there is also a discrepancy between the marking in red of the "Special character area boundary" in Figure 5.15 in Attachment B to the 7 May 2012 report to the Planning Policy Sub-Committee, and the boundary of the Macquarie Street SCA (Area G) on the Special Character Areas Map under the LEP 2012 (Ex C2, p100). In that respect, the red "Special character area boundary" shown on Figure 5.15 in the published version of the DCP is consistent with the boundary shown on the LEP 2012 map. That additional discrepancy gives support to the Council's position that there is a mapping error in Figure 5.15; if that is so, one of those errors (relating to the SCA boundary) has been rectified in the published version so as to bring it into conformity with the 2012 LEP. 5. However, both versions of Figure 5.15 contain two contradictory provisions, being the blue shading across the whole of the site, and the text dimensions of 8m on Albert Street and 10m on Macquarie Street. Stamford submits that the text should prevail, being more specific than the shading; Mulpha submits that the blue shading derives its effect from the provision in section 5.1.3(1), and there is no greater specificity in the numbers than the shading. 6. Mulpha submits that the provisions of the DCP, as with delegated legislation, are to be interpreted having regard to their textual and statutory context (One.Tel Ltd v Australian Communications Authority (2001) 180 ALR 521; Owners of Strata Plan No 3397 v Tate (2007) 70 NSWLR 344; Hallgath v Australian Community Pharmacy Authority (No 2) (2011) 197 FCR 15; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355). 7. The 2012 DCP must be construed by reference to the context in which it appears, by reference to the legislation under which it is made, as a whole, and in a way which promotes its purpose. That purpose is to be discerned from the meaning of the language used in it, interpreted in the context of that language, and the search for legislative intention is only a search for intention revealed by the meaning of the language and not for something outside its meaning and anterior to it (Momcilovic v The Queen (2011) 85 ALJR 957; Hallgath). The DCP must be construed purposively and in context in accordance with the general principles relating to statutory construction, which apply to the construction of instruments (Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379). 8. Mulpha notes that the principles in Project Blue Sky and the modern canons of statutory construction were applied to development control plans in Csillag v Woollahra Municipal Council [2011] NSWLEC 17. The modern approach to statutory construction starts with the context and legislative purpose of a provision (CIC Insurance v Bankstown Football Club Ltd (1997) 187 CLR 384; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; Al-Kateb v Godwin (2004) 219 CLR 562; Tran v Commonwealth (2010) 271 ALR 1). 9. Mulpha's approach as outlined in its submissions reflects accepted principles of construction of legislative instruments, and was not contested by the other parties. Stamford, in its submissions on the interpretation of "ground level (existing)", also referred to Lord Reid's approach to construction of subordinate legislation in Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 at 183: "…I find it necessary to make some general observations about the interpretation of regulations of this kind. They are addressed to practical people skilled in the particular trade or industry, … They have often evolved by stages as in the present case, and as a result they often exhibit minor inconsistencies, overlapping and gaps. So they ought to be construed in light of practical considerations, rather than by a meticulous comparison of the language of their various provisions, such as might be appropriate in construing sections of an Act of Parliament. …Of course, difficulties cannot always be foreseen, and it may happen that in a particular case the requirements of a regulation are unreasonable or impracticable; but, if the language is capable of more than one interpretation, we ought to discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practicable result. 1. As Stamford notes in submissions, that approach has been applied to interpretation of environmental planning instruments: Marina Bay Developments Pty Ltd v Pittwater Council [2007] NSWLEC 41, and the decisions cited therein. One of the authorities cited in that case was GTAA Pty Ltd v South Sydney City Council (2001) 117 LGERA 51, in which Bignold J applied Lord Reid's approach in Gill v Donald Humberstone to construction of a development control plan. 2. While the general principles are accepted, the parties differ as to whether the process of construing the 2012 DCP can properly have regard to material other than the instrument itself, including the committee report of 7 May 2012, Council internal memoranda, and correspondence. 3. In addressing this issue, it is important to note that a development control plan is not an "environmental planning instrument" as defined in s 4 of the Act. It is not a "statutory rule", as defined in s 21 of the Interpretation Act 1987, for the purposes of the application of that Act to statutory rules. A development control plan is, however, an "instrument" as defined in s 3(1) of the Interpretation Act, as an instrument made under an Act, and certain of the provisions of that Act accordingly apply. That does not include s 33, which requires adoption of a purposive approach in interpretation of an Act or statutory rule, or s 34, which permits consideration of extrinsic material for the purposes specified in s 34(1)(a) and (b). 4. A development control plan plays a distinctive role in the assessment of proposed development. As described by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at [87], it is "a detailed planning document which reflects a council's expectation for parts of its area". Adoption of a development control plan and the making of decisions which are consistent with it assist both those with an interest in a site under consideration, and those affected by any development of it to make decisions in relation to their own property: Stockland at [87]. A development control plan is directed not just to lawyers but to planners and consent authorities, and applicants and the community more generally. Most importantly, as noted above, while a development control plan must be considered as a fundamental element or a focal point of the decision making process, in contrast with delegated legislation it is not determinative (Zhang; Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338), a position now reinforced by s 79C(3A) of the Act. 5. The approach of those experts who addressed the interpretation of Figure 5.15 in the 2012 DCP was to a large extent influenced by the history of development of the 2012 DCP controls and what they concluded to be the intent of the provisions. 6. Mr Cirillo (Ex C10, p 28) was of the opinion that Figure 5.15 contains a mapping error; that when the Central Sydney DCP 1996 controls were replaced by the 2012 DCP controls the Council appeared to have omitted to delete the blue shading on the diagram when it amended the tower setback controls which are shown in the numbering; and that any ambiguity in interpretation of the control was eliminated in the email of 16 December 2013 and the letter from Director City Planning of 10 June 2014, which referred to the proposal being non-compliant with "the 10m setback requirement" for Macquarie Street and "the 8m setback requirement" from Albert Street. 7. Mr Chambers (Ex C10, p 29) relied upon the version of the 2012 DCP as exhibited for public comment which showed the blue shading, and in his opinion the purpose of the 30m setback control is to maintain and reinforce the urban character and scale in this section of Macquarie Street. 8. Ms Morrish (Ex C11, p 6) noted that while it is not clear in the 2012 DCP exactly to what the 8m and 10m dimensions refer, there was no ambiguity in the draft 2010 mapping as the dimensions relate to the Special Area boundary lines, which correspond to the dimension lines; in both versions the entire site was shaded blue. In her opinion, having regard to the table accompanying the DCP figure, it is reasonable to draw the conclusion that the 8m and 10m dimensions indicate the setback above the street frontage height of any additional forms above the heritage items as the table talks about the street frontage height for heritage items being their existing street frontage height. That would translate into a street frontage height equivalent to the existing street frontage height of the former Health Department building being maintained to Albert Street and Macquarie Street for 8m and 10m depth respectively and then a height of 22m for the remainder of the site which corresponds to the tallest heritage item in the block (Transport House). The objectives for the SCA (section 2.1.6 (e)(ii)) seek to ensure that development "has street frontage heights and building setbacks above street frontage heights, consistent with the prevailing scale, form and character of buildings nearby". The character and scale of the nearby buildings in this part of the SCA is low, ranging from 22m (Transport House) to the existing Stamford Hotel and down to the smaller scale former Health Department building, and all taller forms for this block are setback 30m or more from the street edge. 9. Mr Harrison differed (Ex C11 pp 10-11) as to what constitutes "nearby" for section 2.1.6 of the 2012 DCP. In his opinion it is necessary to look at the immediate urban context, the visual context of the site and the Macquarie Street SCA as a whole at least the northern half of the Special Area; the tower context of Phillip Street cannot be ignored and the heritage context of the neighbouring buildings must be respected. In his opinion the blue shading on Figure 5.15 is a digital drafting mistake where the blue has simply filled the available space in the absence of a line that reflects the stated dimension, and it is normal drafting convention that a marked dimension takes precedence over scaling a drawing. 10. Dr Lamb (Ex C11, p 8) did not consider the controls to be ambiguous. The 2012 DCP colours every site in that part of the SCA that is between Bridge and Albert Streets including the Chief Secretary's Building and the Royal Automobile Club, which is of a different character to the remainder of Macquarie Street where taller street wall buildings between 35-45m in height including heritage buildings exist. In the 2010 DCP the controls for the heritage buildings on the corner of Albert and Macquarie Streets had initially been shown by specific boundaries in red which showed that the controls of 8m and 10m for setback above street frontage height were intended to apply specifically to the heritage items and not to the remainder of the area shaded in blue and subject to the 30m setback control above street frontage height. Figure 5.15 shows the same dimensions, without boundaries around them, and the same 30m setback above street frontage height that applies to every other site in the area. 11. Considering the 2012 DCP first on the more limited basis as confined to the document as adopted by the Council, we do not consider that either the shading or the dimensions in Figure 5.15 is more specific than the other. Both convey a message to the reader, albeit a contradictory one when read together. 12. In our view, the text in section 5.1.3 provides some assistance in addressing the ambiguity inherent in Figure 5.15. Section 5.1.3(1) states that front setbacks for buildings in a SCA must be provided in accordance with Table 5.1 and as shown in Figures 5.12 to 5.19. For setback above street frontage height, Table 5.1 directs attention to a figure (Figure 5.15), as is the case for four other special character areas listed in Table 5.1. The other two special character areas have setback above street frontage height determined by reference to provisions 2 and 3 of 5.1.3, namely a minimum of 8m or, for sites adjacent to a special character area with a maximum building height of 55m. However, section 5.1.3(1) goes on to state that, in relation to the SCA's for which there is a figure, where the figure shows the entire site as shaded, "additional storeys above the street frontage height is not permitted". That provision would not be necessary if it were intended that the dimensions prevail to the extent of any inconsistency. 13. Further, the proscription of additional storeys above street frontage height for sites that are shaded is consistent with the objective of the Special Area provisions at 2.1.6 in its application to this site by reference to the prevailing scale, form and character of buildings nearby. In that regard, we prefer the evidence of Ms Morrish that tower buildings outside the SCA, including those in Phillip Street, are not "nearby" for the purposes of applying the controls to a site in the SCA. It would also be consistent with the stated purpose of cl 5.1.3 as reinforcing and enhancing the existing character of the SCA in which the site is located. However, we also accept that an alternative reading of Figure 5.15 as offered by Stamford is open, namely that elsewhere on Figure 5.15 the blue shading is specifically dimensioned as 30m from the street frontage and is overlaid upon heritage items only, including the former Treasury Building and Transport House, and the blue shading elsewhere is also superimposed over heritage items only where it applies across a site. 14. In our view to focus solely on the text of the DCP does not resolve the ambiguity in Figure 5.15, which is, according to Table 5.1, the source of the control to be applied. In order to resolve the ambiguity and provide some practical operation for the provision, we consider that it would be appropriate to have regard to some of the material of the kind identified by Stamford. 15. Section 34 of the Interpretation Act 1987 does not apply to the DCP, and in any event the range of material identified in s 34(2) as material to which regard may be had to determine the meaning of an ambiguous or obscure provision in an Act or statutory rule would not be relevant to the interpretation of a development control plan. Having regard to the distinctive role played by a development control plan in the assessment process, and the need to find an interpretation that leads to a reasonably practical result, we consider that the material relating to the drafting of the 2012 DCP, including its adoption by the Council, is relevant in order to understand the broader context and the Council's intentions, and thus the operation of the provision. In our view that would be consistent with the overriding focus of the general principles of interpretation on purpose and context. 16. The Council correspondence referred to above supports Stamford's position that the Council regards the shading in Figure 5.15 as a mapping error. However, we agree with Mulpha that the Council officers' view could not be determinative on the interpretation of a development control plan adopted by the Council, and which can only be amended by the Council. The strongest evidence to support the proposition that Figure 5.15 is to be read having regard to the dimensions rather than the shading is the Table to the report to the Planning Policy Sub-Committee 7 May 2012, which refers to the setback in metres as being "amended" to 8m for "Alfred" Street and 10m for Macquarie Street. However, there is no evidence to show how or why those dimensions were added, or of equal importance, why the shading remained. 17. It was clear to the Council from at least November 2013 that there was at best an ambiguity in Figure 5.15, both from the perspective of Stamford as developer and the Heritage Council in its regulatory capacity, yet on the evidence before the Court the Council has not taken steps formally to amend the figure. 18. We accept that a construction of the 2012 DCP requiring a 30m setback on Macquarie Street would make it impossible to achieve the maximum height limit of 55m under cl 4.3, and FSR of 12.5:1 under cl 4.4, of the 2012 LEP, without any bonuses for design excellence. However, we agree with Ms Morrish (Ex C11 pp 7-8) that that is what the 2012 DCP does for a number of other sites in the Special Area where a 30m setback is imposed, so there can be no expectation that the maximum height or FSR can be achieved for sites or parts of sites where there are heritage items. 19. It would be open to conclude that the ambiguity, and the consequences of opting for either 30m or 10m/8m, in particular for impacts on views (considered below), are such that there is no setback above street frontage height control applicable for the site. That is a conclusion we would not lightly reach, given the purpose of a development control plan in providing guidance, and the need to interpret the 2012 DCP so as to have some practical operation. The divergence of views between the experts was such that either approach could be considered to lead to an unreasonable result, with Mr Croker, Ms Morrish and Dr Lamb giving reasons why a 30m setback is appropriate, whereas Mr McDonald, Mr Harrison and Mr Cirillo considered that a tower form is appropriate. 20. It is not necessary, however, to express a concluded view. Even if we were to accept the reasoning of Stamford and the Council, and find that Figure 5.15 sets the setback requirement at 10m for Macquarie Street and 8m for Albert Street, the proposed development does not comply with those setbacks. On the Council's argument, that would then require consideration of whether the consequences of non-compliances are justified and acceptable. The consequences of an incorrect interpretation and application of the setback above street frontage controls are such that this issue should have been explicitly addressed in a site specific DCP, and is a reason why we have concluded that a site specific DCP is required in accordance with cl 7.20(2) of the 2012 LEP. Whether the setbacks non-compliances are justified 1. The second issue to consider is whether the upper level setbacks proposed by Stamford are justified irrespective of the applicable Figure 5.15 controls. As previously indicated, Stamford seeks approval for varying upper level setbacks of between 6.2m and 8m to Macquarie Street and 3m to 19m to Albert Street. Those are significant departures from the minimum setbacks however Figure 5.15 is interpreted. 2. Council and Mulpha both raised concerns with the upper level setbacks proposed, and contend that smaller or weighted setbacks relied on by Stamford do not apply to Special Character Areas and therefore to the site (cl 5.1.3 (2) of the 2012 DCP). 3. In the absence of any detail on how the upper level setbacks of 10m/8m were derived or adopted, Mulpha is of the opinion that this speaks compellingly of the need for a site specific DCP with public participation to determine a range of controls of which setbacks is just one and uses another. If there is no site specific DCP and the minimum 10m/8m controls are adopted and they are significantly breached as is proposed, in Mulpha's contention, this is a reason alone to refuse consent. 4. The Council's contention was that the non-complying upper level setbacks cause northerly view loss from private and communal areas of The Astor apartments, including of the northern pylon of the Harbour Bridge and the activity around Circular Quay, which could not be considered negligible consequences. 5. Mulpha's experts do not consider that any tower is appropriate, and therefore their comments on non-compliances with minimum 10m/8m upper level setbacks were provided should the Court determine these minimum setbacks were the applicable setbacks under the DCP, and need to be read in that context. 6. Stamford submitted that the 2013 DA complies with the street wall height and the FSR for the site, which are the critical controls for the site, and which arose from the process of developing the design, as did setting back the lower levels from Albert Street even though the 2012 DCP does not require this. The upper level setbacks were a design response to the site's various constraints and should be considered in the context of the benefits achieved from the generous Albert Street lower level setbacks proposed. Whether the appropriate controls require 30m or 10m and 8m, the current proposed setbacks for the site have evolved from the competitive design process. In essence, the winning design could only ever be developed if the nominated setbacks were set aside, as it was conceived when the upper level setback was nominated at 30m in the 1996 DCP. Macquarie Street upper level setback 1. Ms Robinson considered that Macquarie Street is an important street, and no tower elements exist in the "nearby" portion of the Macquarie Street SCA. In her opinion a variation to the minimum 10m setback from Macquarie Street is not appropriate given the extremely sensitive heritage context of the site; the setback proposed behind the former Health Department building does not compensate for a reduction in the minimum upper level setbacks to Macquarie Street; a 3m minimum setback is not a minor non-compliance; and any reduction should be justified in a site specific DCP. She accepted that at 8.2m setback from Macquarie Street the tower element would not be readily visible close to the site in Macquarie Street, but at 6.2m she considered it would be highly visible from Macquarie Street north and south (Ex C11, pp13-14). 2. Mr Williams expressed a concern that the concave angular form of the tower exacerbates its visibility in Macquarie Street and makes it discordant with the alignment of the street wall established by nearby adjoining developments in the street as that form of development was not common to the area, which would make the tower more of a foreground rather than a background building, drawing attention to itself and inappropriate in its heritage context (Ex C11, p 15). 3. Ms Morrish expressed opinions similar to the concerns identified by Ms Robinson (Ex C11, pp 15-18), and specifically noted that the northern block of the SCA in which the site is situated exhibits unique characteristics as it is the only block in the SCA which retains such an extent of low scale heritage buildings in close proximity. In her opinion, this low scale streetscape needs to be retained, and it is not appropriate that for one of the most unique and intact portions of Macquarie Street, a lesser setback than that required above heritage items should be supported. The fact that the development also does not provide the required setback to Transport House in her view exacerbates the length of the form to Macquarie Street, further increasing its bulk and scale when viewed from that street. 4. In Ms Morrish's view, if a tower in this portion of Macquarie Street is deemed to be allowable it should be setback as far as possible to mitigate its bulk and presence on Macquarie Street so that it as recessive as possible. In this regard, she considered that: applying a minimum 10m upper level setback to Macquarie Street may still prove inadequate to meet the SCA's objectives; reducing this setback could set a precedent for every other 10m setback designated along Macquarie Street in the SCA; and the extent of variation was not justified by the completion design process and should be tested by a site specific DCP. In her opinion, the further the setback, the more the tower will read as a backdrop allowing the parapet of the new building and heritage items to be more dominant in the streetscape. The closer it is, the more dominant the tower will feel. 5. Dr Lamb did not consider that a tower was appropriate for the site, for similar reasons to Ms Morrish (Ex C11, pp 18-19). He also considered that the montages prepared by Stamford did not fully represent the extent to which the setback non-compliances lead to the perception of the tower being too close and dominating the view, contrary to the SCA objectives and the numerical controls whichever way they are interpreted. In Dr Lamb's opinion, a view from the north east would have been more relevant in showing the additional bulk and scale of the tower when the non-compliances with both the Macquarie and the Albert Street frontage setbacks are visible in the same view. In his opinion, meeting minimum 10m and 8m upper level setbacks to these streets respectively would have a more beneficial effect on the streetscape than height reduction, with a slimmer eastern tower based on these complying setbacks appearing more elegant and less dominating to the street. 6. In his support for the proposed upper level setbacks to Macquarie Street (Ex C11, pp 19-23), Mr Harrison stated that the overall design is a creative architectural solution for a complex set of site and context circumstances, recognised as such by the Council's Design Advisory Panel. In his opinion, it is visually interesting with high quality detailing and finishes and is a sensitive response to the former Health Department building, and as such, it is a worthy addition to the Macquarie Street streetscape. Mr Harrison provided diagrams which showed a range of building envelopes that had been developed to determine an appropriate design for the site looking at the 1996 and current controls. He argued that the SCA was for the whole length of Macquarie Street and the buildings fronting it, not a subset of this (except to distinguish the western and eastern sides) as the respondents' experts argue. Furthermore, the development had to be considered in the global city context of very tall buildings nearby which cannot be ignored and provide the backdrop to the site including for users of Macquarie Street. In his view, a 55m height limit mediates between the scale of Macquarie Street and the towers in the city centre and the design modulation from podium to tower, in essence, reflects a similar transition. 7. Mr Harrison considered that when comparing a complying 10m upper level setback with the proposed varied setback, there would be little difference as you walk along the street. He considered that the concave front façade of the tower is an architectural feature that clearly distinguishes the tower from the podium and reinforces the visual prominence of the podium which matches the Transport House street frontage height. He referenced precedents in at least three SCA's where setbacks have been reduced below 10m, one of which was in the Macquarie Street SCA, albeit fronting Martin Place not Macquarie Street, noting that the consent authority had been convinced that lesser setbacks can appropriately apply in several circumstances. However, in commenting on the history behind the 10m setback, Mr Harrison states (Ex C11, p 22) that the 10m setback was seen by heritage experts at the time as being the desirable minimum in order to allow heritage buildings to read independently of the tower form behind, and to reinforce the character of the streetscape and "to make designers and decision makers aware that a significant setback is normally required (but not always)". Mr Harrison then went on to say however, that such controls need to be considered in terms of site specific circumstances. In this case, the street frontage height is predominantly defined by the proposed podium and the neighbouring Transport House and the lower Treasury Building (not in dispute by the parties). In Mr Harrison's view, such a strong street frontage presence is not eroded by the proposed mid-rise tower having a lesser setback in part with an average setback close to 10m. Mr Harrison also points out that there are significantly greater setbacks, up to some 20m, behind the former Health Department building when only 10m is required, which is part of the skilful design for the site that Stamford relies upon for approval. This respect for the former Health Department is in his opinion an important feature of the development that should be acknowledged and is a marked improvement to the existing situation in terms of the appreciation and restoration of this heritage item. Albert Street upper level setback 1. The experts agreed that the podium setback from Albert Street is beneficial to the former Health Department building and the Justice and Police Museum due to the visual link being opened up between these heritage listed buildings, and that this setback is a positive outcome noting that there is a nil setback requirement at the ground level. However, on other aspects of the Albert Street setback, there was a strong disagreement in the expert opinion, primarily as to whether the positive elements of the proposal justify the non-compliant upper level setback of the tower proposed from Albert Street. There was agreement that this concern related to the view of the tower in close proximity rather than a long distance view. 2. One area of disagreement relates to the cantilever form of the tower. Mr Williams had no issue with this form, providing it was setback 8m from Albert Street (Ex C11, p 25). Ms Morrish did not support it, commenting that its proximity to the street and the heritage items means that the tower appears "to loom heavily" over both the street and the heritage items (Ex C11, p 26). The main part of the tower projects into the setback to Albert Street to as close as 3m from the boundary, and cantilevers over the heritage items rather than being backdrop buildings to them. In oral evidence Ms Morrish stated that in her opinion the cantilever over the building affects how the heritage item is perceived and takes focus away from it, and dominates it. In contrast, Mr Cirillo in oral evidence considered that the tower is not cantilevered over the heritage item, and gives prominence to it and visual interest from the Quay. Mr Harrison's opinion was that the proposal is not a big building in the context of nearby towers, being mid-rise with the cantilever a small built form element in this context, providing a "protective gesture" to the heritage buildings (Ex C11, p 27). 3. In Ms Robinson's view the proposed upper level minimum setback of 3m is not a minor non-compliance and a complying setback would see the development comply with the 24m RFDC separation control to Quay Apartments. Even if it was a reasonable non-compliance, the variation should be considered as part of a site specific DCP (Ex C11, p 25). 4. The Council was concerned that the closest setback was at the leading edge of the tower where it was most visible and that every increase in setback would allow a heritage building to be better appreciated and every decrease would compromise it. For Albert Street, 8m not 3m would make a significant difference. The Council does not require the building to be orthogonal, however submits it must act as a "backdrop" to the heritage buildings nearby, and in this regard the design does not fit in. 5. Ms Morrish noted that this section of Albert Street contains heritage items at a lower scale even than Macquarie Street. There are towers in the vicinity but not immediately adjacent to this part of the block in the same SCA so the site is situated in a low scale context transitioning from the former Health Department building and the Justice and Police Museum up to the height of Transport House and then to the Intercontinental Hotel. 6. Mr Harrison considers (Ex C11, p 27) that, even if a 6m setback to the Justice and Police Museum were provided, there would still be a large wall of development adjoining this building. This boundary is effectively the rear of the museum which is situated on a corner, and the tower could therefore be seen as a backdrop to the museum. He further stated that the tower has been designed to be angled and articulated to reduce the visual impact of a full side wall and was a feature of the competition winning design supported by Council officers and Design Advisory Panel in terms of ameliorating the visual impact on the museum and creating a visually interesting façade commensurate with its important location. Mr Harrison noted that the Justice and Police Museum's Board had granted the applicant an easement of 6m along the common boundary to allow the development to build to the boundary, and that the Board was comprised of eminent architects and heritage specialists. He considered that the proposed development would be more attractive than the existing building, with a good relationship to the museum buildings which had tall towers nearby to the north and west in other SCA's. In his view a (complying) non-angled tower would also have little if any visual interest. 7. Mr Cirillo considered that the proposed setbacks to Albert Street provided a better outcome for Quay Apartments and the former Health Department building than a development meeting the 2012 DCP setbacks, with its splayed setbacks and oblique presentation to the street, and in his opinion the benefits of the setbacks sought outweigh any disbenefits (Ex C10, p 27). Findings 1. There are a number of areas where Stamford seeks to depart from 2012 DCP upper level setback controls on the basis of the overall beneficial design outcomes being achieved, given the acknowledged constraints of the site. Stamford submits that setbacks are mainly concerned with protecting amenity and reducing view impacts, and the proposed development achieves this. We address those issues below. 2. We do not accept, however, that the issues are confined to amenity and views for the upper level street setbacks. In this instance, the setbacks are more concerned with protecting the heritage values of the streetscape (particularly Macquarie Street) and prevailing setbacks, and of listed heritage items. We accept the agreed expert evidence that the further a tower element is setback from a street, the less visible and dominating it is to that street and the more it is perceived as a backdrop building to adjacent heritage buildings and streetscapes particularly in close proximity. As such we are not convinced that the minimum upper level setbacks to both streets should not be applied, and in our view, they should be the starting point on which to then design tower elements. Whether buildings are then angled, concave or octagonal will depend on how the development responds to the known site constraints and achieves the maximum amenity for its future occupants and neighbours. These issues are further discussed when we address the heritage issues, but again reinforce the benefits that preparation of a site specific DCP before a detailed DA would bring to the process. 3. The degree of departure from the 2012 DCP, even at 10m and 8m, is significant and could not be construed as minor. Applying an average setback may achieve some benefits but, based on the agreed expert evidence, that is not a control contemplated for this site in the 2012 DCP. Whether such an approach is appropriate should be tested in a site specific DCP. 4. We also do not accept that the proposed setbacks are consistent with the "prevailing scale, form and character of buildings nearby" as required by clause 2.1.6(e) of the 2012 DCP, accepting that that character may change over time with other proposals before the Council. In this context "nearby" must, as a start, consider buildings in the immediate vicinity. While Mr Harrison referred to a number of tower buildings in the vicinity of the site that he considered provided the "nearby" context, including Aurora Place, Governor Phillip Towers, the AMP building and the Intercontinental Hotel, as noted by Ms Morrish, none of these buildings other than Aurora Place are in the Macquarie Street SCA and all of them, other than Aurora Place, are backdrop buildings at least half a block from the site where greater height controls apply. We agree with Ms Morrish that when considered by reference to the SCA, the buildings in the vicinity are predominantly of a low scale, particularly in Macquarie Street. 5. The parties were not in dispute that the building has architectural merit. However that is not the key consideration for a development in this location. Based on the view, supported by the City of Sydney model, we accept that the proposal allows a better viewing of the former Health Department building from Albert Street than the existing hotel on the site allows. There can be little doubt, however, that it will be the dominant building on the site when the site is viewed from Albert Street south of the former Health Department building. 6. Finally, in our view the concern is not with how the tower element would be viewed from distant locations, even a few blocks away: we agree with Stamford that, in that context, it is a mid-rise tower in a CBD context. The issue is how it is viewed from Macquarie Street and Albert Street in this low rise and historically important section of the Macquarie Street SCA and, in this regard, we are not persuaded that there is sufficient justification to depart from minimum 10m and 8m upper level setbacks to Macquarie Street and Albert Street respectively. Setbacks to the southern and western boundaries 1. The third issue identified above relates to the setbacks to the southern (side) and western (rear) boundaries. The Council and Mulpha both raised concerns with the southern and western setbacks proposed for the development. The southern boundary is the side boundary shared with Transport House, whilst the western boundary is the rear boundary shared with the Justice and Police Museum. 2. The Council contends that the proposal does not comply with the side and rear setback controls in cl 5.1.2.2 of the 2012 DCP, which it contends require a 6m setback for principal windows or balconies of residential flat buildings up to 45m in height, or 12m where the building exceeds 45m. The Council's position is that the development only proposes 3m from the southern (side) boundary from the ground to a height of 60.5m and a nil setback from the rear (western) boundary for the entire building. 3. The Council contends that the non-compliances are inappropriate as they contribute to the (unacceptable) width and massing of the building when viewed from the public domain; result in an unacceptable disparity of scale with the adjoining heritage listed Justice and Police Museum and will visually dominate this heritage building; result in a lack of separation creating visual/acoustic impacts between proposed apartments and Transport House; and result in a loss of views from rooms in the Intercontinental Hotel. 4. A specific concern of Mulpha was a mutual loss of privacy, namely the impact of the southern setback on the amenity of office workers in Transport House associated with the close proximity of windows and balconies of the proposed apartments, and with other apartments in the proposed development subject to overlooking from windows in Transport House resulting in privacy issues for residents of apartments up to Level 7 where windows and balconies are proposed to be only setback 3 metres not the required 6 metres. The existing Sir Stamford Hotel does not result in any privacy impacts to Transport House as the northern windows of Transport House face a blank wall of the hotel. 5. Mulpha accepted that Transport House was a commercial not a residential building, but did not accept that the privacy concerns could be adequately addressed by screening as Stamford suggested. 6. Even if privacy was resolved by screening, which Ms Morrish was sceptical about, she still had concerns with possible impacts on amenity arising from the setback and any screening in terms of loss of daylight outlook, view sharing, and potentially ventilation (Ex C11, p29). 7. The Council was also concerned with the impact of the development on the privacy of the users of Transport House noting that the fact it has a commercial use does not mean that the impact can be ignored. Whilst accepting that the sensitivity of a commercial use is less than that of a residential use, it was the Council's view that the privacy of office users needed to be respected. The fact that Transport House has a nil setback on the boundary is one of historical fact and context (and as a heritage listed building it is unlikely to be redeveloped), and new development adjoining needs to be designed having regard to this existing constraint; a 3m non-complying setback with privacy screens of doubtful utility demonstrates in its submission another example of where non-compliance with a DCP control has an adverse consequence. 8. Stamford's position is that the proposed setbacks are acceptable. Stamford submits that the proposed development provides a 3m setback to the southern boundary (where an easement for air and light exists) for the full height of the building, noting that the existing hotel building on the site currently has a 3m setback to Transport House. The 2012 DCP controls allow a nil boundary setback on common boundaries above 45m where there are no windows (Figure 5.9, 2012 DCP) with the setback controls to side and rear boundaries driven by the need to address privacy concerns between principal living rooms. 9. In relation to the rear (western) setback, Stamford submits that there is the required 6m separation from the neighbouring building, achieved through the 6m easement for light and ventilation obtained from the Justice and Police Museum, which is a State listed heritage item whose redevelopment in future cannot seriously be anticipated. 10. Clause 5.1.2.2 of the DCP provides: 5.1.2.2 Side and rear setbacks (1) Above a height of 45m, windows or balconies of commercial buildings are to be set back at least 3m from side and rear property boundary. (2) Separate principal windows and balconies of residential buildings and serviced apartments from windows or balconies of commercial buildings by at least 9m. This separation is to be achieved by a setback from the side property boundary of at least: (a) 6m for residential buildings, serviced apartments or hotels; and (b) 3m for a commercial building. (3) In new commercial buildings, windows at the same level as the principal living room windows or balconies of adjacent residential buildings, or above a height of 45m are to be set back from side and rear boundaries by at least 3m. Walls without windows do not need to be set back. (4) Up to a height of 45m, a minimum setback of 6m is required from the side or rear property boundary for principal windows or balconies for residential buildings, serviced apartments or hotels. (5) Above a height of 45m, a setback of 12m is required from the side or rear boundary for residential buildings, serviced apartments or hotels to ensure visual privacy is achieved between dwellings. (6) Setbacks of principal windows or balconies of mixed use buildings are to be the distances specified for particular uses in provisions (1) through to (5) above. (7) If the specified setback distances cannot be achieved when an existing building is being refurbished or converted to another use, appropriate visual privacy levels are to be achieved in other ways, for example, the inclusion of screens or offsetting windows. (8) Side and rear setback distances to the property boundary can be reduced with architectural features such as bay windows, or splayed windows with oblique outlooks provided that: (a) a minimum separation of 6m between the main walls of each building is maintained; (b) separation is between sections of building walls that include service room windows; and (c) oblique views are available to site boundaries. 1. The objectives for the section 5.1.2 building setbacks controls are to: (a)enhance amenity in terms of daylight, outlook, view sharing, ventilation, wind mitigation and privacy in residential buildings and serviced apartments; (b)enhance the quality of the public domain in terms of wind mitigation and daylight access. 1. There was disagreement between the parties as to whether a number of the windows in the proposed development were primary or secondary and, in terms of which apartments do not comply, the extent of various setback non-compliances and their relative impact on either privacy or loss of views (for apartments and the roof terrace of The Astor and rooms in the Intercontinental Hotel), or both. 2. The Council submitted that the bedrooms to a number of the proposed apartments have southern facing windows and privacy to these bedrooms was a relevant consideration. The Council submits that it is "nonsense" to suggest that the principal windows to these bedrooms were via sliding doors through the living rooms to the living room windows which faced east. Therefore the non-compliance with the southern setback would have privacy impacts for the future occupants of these particular apartments. 3. There was also disagreement between the experts as to the application of cl 5.1.2.2 of the 2012 DCP. It was Ms Robinson's opinion that the non-compliance with the 2012 DCP setbacks on the western boundary would have significant adverse impacts on views from The Astor, and that the proposed building would not meet the 2012 DCP controls for internal separation between buildings on the same site where there is an interface, such as there is between the podium and the former Health Department building 4. Mr Cirillo was of the view that that interpretation of the DCP provisions in section 5.1.2.2 was incorrect. In Mr Cirillo's view, the 2012 DCP allows a nil setback on common boundaries for buildings above 45m by reference to Figure 5.9 of the 2012 DCP (Ex C10, p 16). He disputed that there were principal living areas facing the southern, or common, boundary to Transport House, which would relieve any concerns of privacy impacts or overlooking. Occupants of Transport House currently face a blank wall of the existing hotel only 3m away. Furthermore, he argued that a nil setback to the western boundary from the ground level for the entire height is sufficient given the existence of the 6m wide easement for light and ventilation on the adjacent site. 5. In terms of the application of other provisions of section 5.1.2.2, Mr Cirillo's evidence in summary (Ex E, pp 25-26) was that: 1. subclause (1) is not relevant as the proposal is not for a commercial building greater than 45m in height; 2. subclauses (2), (4) and (5) are complied with as, in his view, there are no principal windows or balconies on the southern elevation of the development, and the secondary windows have adequate privacy screens; 3. subclause (3) is not relevant as the proposed development is not a commercial building but in any event a setback of 3m is provided; and 4. there is a 22m separation to the nearest residential building (the Quay Apartments) which will not result in any privacy impacts associated with these apartments. 1. In terms of the impacts on Transport House, Mr Cirillo considered the setbacks to Transport House to be adequate as it is a commercial building (ie has no residential windows), there are no significantly greater impacts on ventilation or sunlight than those caused by the existing hotel built on the same 3m setback, and there would be little prospect of Transport House being used for residential purposes in the future (Ex E, p26). 2. Mr Harrison considered that occupants of the apartments can achieve privacy by closing internal blinds/curtains, and the primary outlook of those apartments with a south facing bedroom window is to the east through the living room. The issue was caused by Transport House having windows on the common boundary. The proposed development has secondary windows setback 3m from this boundary and these windows have 60% permanent opacity. He firmly considered that building separation and privacy associated with the southern boundary setbacks had been sufficiently addressed (Ex C11, p34). 3. Mr Chambers observed that the proposed design "lays the ground" for adverse privacy impacts if sensitive uses are developed above Transport House, as the proposed apartments from levels 8 to 20 all have their principal living areas facing south over Transport House (Ex C11, p17). 4. Ms Morrish noted that there is an approved DA for an additional 3 storeys on Transport House, and considered that it is inequitable that Stamford is forcing compliance with the required setbacks onto the Transport House site (Ex C11, p 30). 5. The planning experts agreed that if the apartment layouts in the podium were redesigned or reduced to be larger with limited glazing facing south, there would be an improved relationship with Transport House (Ex C10, p 15). The urban design experts agreed that if the side wall of the podium was blank or the podium was used for commercial purposes, then the issue of proximity and separation relative to Transport House would no longer be pressed (Ex C11, p28). 6. Mr Chambers and Ms Robinson expressed concern that the setback non-compliance would result in the development having an overbearing impact on the Justice and Police Museum which is a State listed heritage item (Ex C10, p18). Mulpha submits that there is nothing to preclude some form of further development on the museum site which retains the museum, nor to preclude either the renegotiation of the easement or its extinguishment. 7. Furthermore the non-compliant nil setback to the western boundary has significant view loss implications for rooms in the Intercontinental Hotel, particularly when added to the non-compliant height and proposed upper level setbacks. This view impact would not be so severe if the required setback and height controls were complied with. In Mulpha's submission, that is reason alone to refuse the application even if the construction of the 2012 DCP in terms of the required upper level street setbacks was not in dispute. Findings 1. The view on the second day of the hearing included the setback from the office areas within Transport House, where the close proximity of Transport House to the subject side boundary, and of the proposed development to Transport House, were apparent. The view also included the relationship between the site and the Justice and Police Museum. Whilst we accept that the outlook from and into a commercial building is a lesser consideration than that applicable to a residential use, it is evident from the proximity of the existing and proposed buildings that there will be relatively poor amenity and potential privacy outcomes for existing and future occupants of both Transport House and the proposed development arising from the reduction in the side (southern) setbacks sought. Furthermore, the nil setback sought to the rear (west) is reliant on that adjoining site not seeking to be further developed or its uses changed, nor for that site to extinguish an easement, in order to achieve satisfactory building separation. Such issues need to be more thoroughly considered in terms of land use mix, not only for the site but for the affected adjacent sites. If, on that consideration, some form of residential use is determined to be appropriate for the podium, the location and orientation of apartments, appropriate boundary setbacks, and the reasonable degree of view impacts would need to be determined. This consideration could, and in our view, should, be undertaken in the form of a site specific DCP so as to determine the parameters for and settle the detail of development on such a constrained site, in its context of the heritage items on both boundaries. 2. The next issue to consider relates to the height of the proposed development. Height 1. As noted above, the first of the three aspects of height relevant in this appeal is to establish what is the height of the development as proposed. A consequential issue would be, to the extent that the height so determined exceeds either the 55m height limit in cl 4.3(2), or 60.5m if a 10% bonus height is permitted under cl 6.21(7), whether compliance with the height development standard should be varied under cl 4.6 of the 2012 LEP. 2. The development application measured the height of the proposed building above a consistent plane labelled on the architectural plans as "NATURAL GROUND LVL RL 15.770" (Ex B, drawings DA301, DA302, DA303, DA304). In his individual Statement of Evidence (Ex G), Mr Harrison stated that based on this level the proposed building is 60.5m with the exception of a stack on the roof that exceeds the maximum height control by 2.98m. Mr Harrison provided a request to vary the height development standard by this amount under cl 4.6 of the 2012 LEP (Ex G, Attachment 2). 3. The Council contends that, even assuming the maximum design excellence bonus is available under cl 6.21(7)(a), the proposed development does not comply with the 60.5m height development standard. The Council submits that applying the definitions of "building height (or height of building)" and "ground level (existing)" in the 2012 LEP, the height of the proposed building is not 60.5m, but up to 65.7m (and 65.99m to the proposed water tanks). Based on the survey plan, the "ground level (existing)" is up to approximately 5m below the assumed "NATURAL GROUND LVL RL 15.770", and the greatest difference occurs in the west and north elevations. The proposed non-compliance is inappropriate in the location as it: * is contrary to the objectives of the height of buildings standard; * increases the height of the proposed development as viewed from the public domain and increases the bulk and scale of the tower form; * increases the visual prominence of the proposed tower form over the lower scale heritage items on and around the site; and * results in loss of views from the roof terrace of The Astor and from visitor accommodation rooms in the Intercontinental Hotel. 1. As noted by Stamford in submissions, the difference between it and the Council is the result of a difference between the reference point from which Stamford has calculated building height, and the reference point adopted by the Council. 2. In her individual statement of evidence (Ex C5), Ms Robinson explained her approach to determining the "ground level (existing)" from which building height should be measured. In her opinion that should equate to the existing surveyed surface of the ground, being the levels shown on the survey plan included in the DA submission (Plan Showing Detail & Levels for Sun Access Plane, prepared by Denny Linker & Co Ref 090909 Issue E dated 15.09.09 and included as Appendix C of the SEE). That survey shows various spot levels around the perimeter of the site, with limited levels provided on the western and southern boundaries and within the site itself. 3. In Ms Robinson's opinion the proposed height should be measured from the ground level of the site where known and from the footpath level at the site boundaries extrapolated across the site, as this would reflect the sloping topography of the land, a methodology consistent with Bettar v Council of the City of Sydney [2014] NSWLEC 1070. Using that methodology, Ms Robinson determined that the east elevation complies with the 55m and 60.5m height standards; the north elevation has a maximum height of 66.07m and is 1.79m-5.7m above the 60.5m standard and 7.29-11.07m above the 55m standard; the west elevation has a maximum height of 66.19m and is up to 5.57m above the 60.5m standard (or 5.69m above when measured to the watertanks) and up to 11.07m above the 55m standard (11.19m to the water tanks); and the south elevation has a maximum height of up to 65.87m which is up to 5.37m above the 60.5m standard and up to 10.87m above the 55m standard (10.99m to the watertanks). 4. The difference between the approach adopted by Stamford and Mr Harrison, and that of the Council and Ms Robinson, is demonstrated by Figure 30 from Ms Robinson's individual statement of evidence (Ex C5) showing the Albert Street and western elevation photomontage of the proposed development marked up to show assumed ground level relied upon by Stanford and existing spot levels: 1. Stamford submits that measuring building height from RL 15.77, which corresponds with the finished floor level of the existing Sir Stamford Hotel on the site, is the more appropriate and certain point from which height should be measured on this highly disturbed site, rather than the approach of the Council. In Stamford's submission the Council's approach seeks to estimate the ground level without reference to the existing building on the site and by extrapolating known surveyed points to other parts of the site on which the ground level cannot be conclusively determined. 2. Stamford submits that the definition of "ground level (existing)" in the 2012 LEP comes from the Standard Instrument (Local Environmental Plans) Order 2006 which applies across the State, and the term must apply to both greenfield and modified sites, where natural ground level cannot be determined. In an instrument such as a local environmental plan which lacks the degree of precision and formality that one would expect in a statute, reliance may be appropriately placed on the term being defined (relying on Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 per Basten JA at [21]). 3. Stamford submits that the decision of O'Neill C in Bettar v Council of the City of Sydney [2014] NSWLEC 1070, which is the only judgment of the Court which considers the definition of "ground level (existing)", is distinguishable, based on Mr Harrison's evidence that the site at issue in those proceedings was not a sloping site and had a street on three sides with known survey points for all aspects of ground level (Ex C9, p 6). Further, the approach adopted by O'Neill C introduces into the consideration of "ground level (existing)" concepts of "ground level (mean)" in the sense of taking into account the outer surface of the existing walls of the building. 4. Mulpha submits that Stamford's "NATURAL GROUND LEVEL RL 15.770" does not accord with the actual surveyed ground levels and cannot be used. To apply that level from the front steps of the existing building would mean that "ground level (existing)" would depend on the design of any passing structure on a site. Mulpha concedes that there will be difficult circumstances for application of the definition, and submits that Bettar should be applied. 5. The Council submits that determination of "ground level (existing)" must relate to the site, and not to the building presently on the site; it is not the same as natural ground level, but the ground level of the site; and that the height of the building is correctly measured by Ms Robinson. 6. Mr Harrison, Ms Robinson and Mr Chambers addressed the application of the defined terms "building height (or height of building)" and "ground level (existing)" in the 2012 LEP in their joint report (Ex C9). The experts agreed that Stamford's site survey plan shows the "ground level (existing)" along Macquarie and Albert Streets, and that basement levels on the site should not be used to determine "ground level (existing)". They agreed that natural ground level is not defined in the 2012 LEP and is not relevant to the determination of building height, and that "ground level (mean") is not relevant as it is not referenced in the 2012 LEP standards or provisions. 7. Mr Harrison's evidence was (Ex G, pp 9-10) that there is no existing ground level on the site: the levels of the footpaths on Macquarie Street and Albert Street provide enough information for levels on the eastern and northern boundaries to be ascertained, but there is an existing basement for the full extent of the site (excluding the heritage item), and there are no existing ground levels on the adjoining sites to the south and the north, and any measurement would need to assume an average between known levels which is not what the definition asks for. 8. In Mr Harrison's opinion, the only sensible way to measure the maximum building height is to adopt as ground level (existing) the level of the existing ground floor of the existing building located on the site. That approach uses the level at the entrance to the existing hotel and the average level of the Macquarie Street frontage, and building height should be measured from that point because: * its relationship with Macquarie Street and the special character area is the most important interface and where height needs to be assessed most carefully; * it is a known point that can be measured accurately; * it is generally consistent with the previous definition of how to measure height under the 2005 LEP which was the instrument under which the 55m height control was derived; and * it makes urban design sense that the building steps up to the west of the site which is the general urban form of the eastern edge of the city. 1. Mr Harrison considered that the Council's approach was flawed, because it assumed that the surveyed spot levels on the southern and western boundaries represent ground levels when they do not; the levels of the western boundary are not based on any RL relating to ground; the levels on the southern boundary are extrapolated from the northern boundary which cannot be correct because the site slopes from the south downwards to the north; and the Council's levels are based on interpolating a few known levels for an assumed natural ground level when natural ground level is not defined in the 2012 LEP. 2. In his contribution to the joint report (Ex C9) Mr Harrison demonstrated (at pp 4-5) what he described as the "unnecessary confusion" of the 2012 LEP definition by reference to four diagrams (Annexure D): 1. Condition A is an existing building on level ground, for which the definition works well. Conditions B and C show an existing building on sloping ground, one with ground floor level with the street, and the other with basement parking projecting partly above ground at the street front. Condition B should be read so that ground level (existing) follows the excavation, an approach which Mr Harrison notes is adopted by councils. To do so for Condition C would have the height measured from any point at the bottom of the basement which would not be workable or reasonable, and Mr Harrison considered that this should be interpreted so the ground level (existing) is the ground floor of the building (for example at the top of the steps on Martin Place for the GPO building). Condition D shows an existing building with its ground floor at the same level as the street and basement car parking projecting above the natural ground at the opposite boundary, which Mr Harrison considered to be similar to the site: there are two ground levels as far as the building is concerned but ground level (existing) to a normal person would be the level closest to the street; and in this instance it would be the level of Macquarie Street that should set the ground level (existing) of the development. 2. Ms Robinson and Mr Chambers disagreed with Mr Harrison's reliance on "NATURAL GROUND LVL RL 15.770", as in their opinion that effectively measures height above a Macquarie Street "ground level (mean)" which is not consistent with the 2012 LEP, and bears no relationship to the existing surface of the ground particularly on the western boundary where that level is more than 5m above known survey levels. They considered that it is nonsensical to rely on either an excavated basement, or an elevated ground floor to determine "ground level (existing)", and considered that Bettar provides useful guidance. Findings 1. While Mr Harrison expressed the opinion (Ex C9, p 5) that the definition of "ground level (existing)" is unclear and therefore unworkable, at least in the context of major development on complex altered sites, it must be given some operation. 2. We accept that achieving a practical operation for the definition poses particular challenges for sites such as the site, where, as Ms Robinson noted (Ex C5 p 67), the existing buildings occupy almost the entire site so there is limited "ground" (as in soil, garden or paving) around the building and on the site. However, we do not consider that Mr Harrison's approach should be adopted, as it appears to be influenced by an understanding of the intent of the height control standard of 55m based in the definition for height in the 2005 LEP and the 1996 DCP which defined the ground level for the whole site as the mid point of the highest street frontage. The 2012 LEP approach to measuring building height, which relies on the Dictionary to the Standard Instrument, differs from that required under the 2005 LEP. 3. The 2012 LEP must be interpreted in accordance with its own definitions, and not, as Mr Harrison acknowledged, by reference to definitions in former planning instruments. 4. It may be that the history of the development of the present proposal through the competitive design process occurring while the previous planning instruments were in force, and the development of the Standard Instrument-based 2012 LEP (as outlined in Ex C9, pp 5-6), would be relevant in considering whether it was appropriate to permit a variation of the height development standard under cl 4.6 of the 2012 LEP. However in our view the actual height of the proposed building must first be determined, by application of the 2012 LEP definitions. 5. The discussion of those definitions by O'Neill C in Bettar was as follows: 35. As building height is defined in LEP 2012 as the vertical distance between ground level (existing) and the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like, it is essential to nominate an existing ground level in order to be able to determine the height of the building. This is usually achieved by taking the lowest level on an existing site, as shown on the site survey, directly beneath the highest part of the proposed development, to determine a maximum building height dimension. 36. The definitions of basement, height of buildings and ground level in LEP 2012 have come from the dictionary of the standard instrument (Standard Instrument - Principal Local Environment Plan). Ground level (existing) is defined in LEP 2012 as the existing level of the site at any point. This definition of existing ground level is sufficiently vague that both expert planners' reasoning can be argued, because the particular difficulty in applying this definition to this site is that the existing building occupies the whole of the site area and so there is no 'ground' (as in soil/garden/paving) around the building and on the site, from which the existing ground level can be determined by a site survey. 37. It is relevant to consider the objectives of the building height development standard in considering how best to determine the maximum height of the building using the dictionary definitions in LEP 2012. The objectives include, at cl 4.3(a) of LEP 2012, to ensure the height of development is appropriate to the condition of the site and its context. As one of the purposes of the development standard is to relate the proposal to its context, it follows that the determination of the existing ground level should bear some relationship to the overall topography that includes the site. 38. Mr Betros' approach focuses entirely on the existing building on the site. Once the existing building is demolished, the point at which the height of the building was measured from will no longer be discernable or relevant. Importantly, this approach does not relate the building height development standard to the context of the site, it only relates it to the building to be demolished. Using this method, it is conceivable that on one property, the existing ground level will be taken as two storeys below ground level where there is a basement (as in the example raised by Mr Betros) and on the adjoining property, the existing ground level will be taken as being well above ground level where a building occupies the entire site and the finished floor level is higher than the footpath, resulting in adjoining sites with starkly different height limits arising from the same development standard. 39. Furthermore, the definition of basement in LEP 2012 is the space of a building where the floor level of that space is predominantly below existing ground level and where the floor level of the storey immediately above is less than 1 metre above existing ground level [italics added]. From this definition, it does not follow that existing ground level becomes the level of the basement floor or the soil beneath the basement following the construction of a basement. A basement is, by definition, below ground level and so the level of the basement floor cannot be taken to be existing ground level. 40. For these reasons, I do not accept Mr Betros' approach of defining existing ground level as the ground floor level of the existing building and then dropping it down to the basement level in the north-eastern corner of the site where the existing basement is located. This results in an absurd height plane with a large and distinct full storey dip in it as it moves across the site and crosses the basement of the existing building, which relates only to a building that is to be demolished and has no relationship to the context of the site. This is not a criticism of Mr Betros' reasoning, however, as I understand he has adopted the approach taken by Council in previous assessments, which is reasonable. 41. I prefer Mr Chamie's approach to determining the existing ground level because the level of the footpath at the boundary bears a relationship to the context and the overall topography that includes the site and remains relevant once the existing building is demolished. RL25.0 is the footpath level adjacent to the site boundary at the north-western corner of the site on Boundary Street, which is the lowest point on the site (as there are only levels for the northern boundary along Boundary Street and the eastern boundary along Wyndham Street). Considering the topography around the site, the highest point along the site's boundaries is the north-eastern corner, on the corner of Wyndham and Boundary Streets (RL26.11) and the lowest point is likely to be the opposite corner, the south-western corner. Level 4 of the amended proposal is setback 4.51m from the eastern boundary and 4.77m from the northern boundary. So the height above ground level on north-western corner of Level 4 is approximately 1m over the 15m building height development standard and the exceedance is less than 1m on the eastern side of the Level 4, as it is closer to the highest point of the site at the north-eastern corner. 1. We agree with the approach adopted by O'Neill C in Bettar, although we would not rely, as O'Neill C does, on the stated objectives of the height development standard, since while the definition of "ground level (existing)" is common to those local environmental plans adopting the Standard Instrument, the objectives for height standards vary from instrument to instrument. In our view, Bettar provides a practical operation to the definition, both for a greenfield site and, as here, a modified site in a built environment. It places the proposed building in its context, rather than relying on the present built form of any existing development on a site. 2. Reliance on the existing built form, as Mr Harrison's Annexure D diagrams B and C demonstrates, means that circumstances such as the extent of excavation from site to site could lead to different height limits applying to adjoining buildings on redevelopment of any of those sites. On the information available for the site, application of Bettar results in a sloping plane across the site, and we agree with Ms Robinson that that reflects the relationship of the proposed development to the overall topography that includes the site. 3. We accept that the availability of survey information needed to apply the Bettar approach may vary from site to site. Mr Harrison's cl 4.6 statement (Ex G, Attachment 2) included a photograph of the Bettar site, which had two street frontages and an adjoining vacant site where ground level could be determined, meaning that all four relevant points were known. In this instance, there are limited levels provided on the Denny Linker survey for the western and southern boundaries and within the site itself. In his individual statement of evidence, Mr Harrison outlined his concerns with the use of the surveyed levels for the southern and western boundaries and their relationship to ground level. 4. However, we are satisfied that there is sufficient information to determine "ground level (existing)" for the site, and we agree with Ms Robinson and Mr Chambers that the definition is workable. That is in fact demonstrated by the plan provided by Mr Harrison (Ex G, Figure 1) showing measurement of average boundary levels based on actual and surveyed levels in the public domain, with a figure in the centre of the site being an average between two surveyed points rather than a surveyed ground level: 1. Mr Chambers, Ms Robinson and Mr Harrison were in agreement (Ex C9, p 3) that, if the definition of "ground level (existing)" is a sloping plane, they would rely on the additional diagram prepared by CHROFI relying on the known survey levels in Macquarie Street, Albert Street and Phillip Street, titled "Measured Heights (DA above sloping height plane)" (Annexure C to Ex C9): 1. Ms Robinson noted that the only substantive difference between the agreed diagram and her assessment was that she had used a spot level on the driveway to the adjoining Justice and Police Museum (RL 10.40) whereas the agreed diagram projects a plane from a known level in Macquarie Street to a known level in Phillip Street: the maximum extent of non-compliance calculated results in similar height measurements to those provided in her Statement of Evidence, with a slightly greater height non-compliance resulting from the agreed diagram. 2. We accept the agreed expert evidence, and find, based on the diagram in Ex C9 Annexure C, that the proposed development exceeds the height development standard by up to 11.31m if the 55m standard applies, or up to 5.81m on the 60.5m standard (including the maximum 10% bonus). 3. As noted above, Stamford provided a written request under cl 4.6 of the 2012 LEP seeking to vary the height development standard (Ex G, Attachment 2). In order for there to be power to grant development consent where the proposed development contravenes the height development standard, it would be necessary for the Court, as consent authority, to be satisfied that the written request has adequately addressed the matters required to be demonstrated by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out (cl 4.6(4)(a)). 4. Given our conclusion on the application of cl 7.20 of the 2012 LEP, it is not necessary to address the matters required by cl 4.6(3) and (4) of the 2012 LEP or to reach a concluded view on whether it would be appropriate to grant consent notwithstanding the non-compliance with the height development standard. 5. We agree with Ms Robinson (Ex C9) and Mr Chambers (Ex M13) that determining "ground level (existing)" and therefore the maximum permitted "building height" is a fundamental building envelope issue that could have been appropriately considered as part of a site specific DCP. That consideration could have determined whether, in the context of the topography of this site, it is appropriate to measure height from a sloping plane, or whether, as Mr Harrison considered (Ex G, p 10), building height should be measured from the RL15.77 level at the entrance to the existing hotel and the average level of the Macquarie Street frontage on the basis that the relationship with Macquarie Street and the SCA is the most important interface and the location where the height would need to be assessed most carefully. Addressing this issue in a site specific DCP would of course not override a contrary development standard in the 2012 LEP, however could be relevant if a variation under cl 4.6 of the 2012 LEP was required. Heritage 1. Section 57 of the Heritage Act 1977 requires approval for the carrying out of any development in relation to the land on which a building, work or relic listed on the State Heritage Register is situated, or to alter the building (s 57(1)(e), (f)). For a building listed on the State Heritage Register, the approval body is the Heritage Council (s 56). The process for obtaining that approval is specified in Part 4 Div 3 of the Heritage Act. The matters for consideration are specified in s 62 of the Heritage Act: 62 Matters for consideration In determining an application for approval in respect of an item or land, the approval body shall take into consideration: (a) the extent to which that application, if approved, would affect the significance of any item as an item of the environmental heritage, (b) the representations, if any, made with respect to that application under section 61 (3), (c) such matters relating to the conservation of that item or land as to it seem relevant, and (c1) any applicable conservation management plan (within the meaning of section 38A) endorsed by the Heritage Council, and (d) such other matters as to it seem relevant. 1. The requirement to obtain an approval under Part 4 Div 3 of the Heritage Act for that part of the proposed development relating to the former Health Department building means that the proposed development is "integrated development" as defined under s 91 of the Act, and the consent authority is required to refer the development application to the relevant approval body. 2. The Council referred the development application to the Heritage Council on 24 December 2013. Heritage Council officers prepared a report to the meeting of the Heritage Council Approvals Committee on 5 March 2014 in which they concluded that the proposal was acceptable, and noted that it would have an impact on the setting of the former Health Department building, the Macquarie Street Special Character Area and the heritage items in the vicinity. The assessment concluded that on balance the benefits the proposal afforded to the former Health Department building, the SCA and the Justice and Police Museum, "being high quality design and public domain improvements" mitigate the potential adverse heritage impact that the height of the tower represented (Ex C2, tab 3, 484-490). 3. The Heritage Council resolved to issue General Terms of Approval (GTAs) on 5 March 2014. 4. On 3 July 2014 the Council forwarded to the Heritage Council the amended development application. On 11 August 2014 the Council forwarded to the Heritage Council copies of submissions received in relation to the renotified amended development application. 5. The Heritage Council was scheduled to consider the amended application on 20 August 2014. The report prepared by the NSW Heritage Branch for that meeting recommended that the Heritage Council not grant GTAs to the amended application. The reasons given were that: * the intensification of vertical building mass represented by the proposed residential tower element conflicts with the heritage values of the SCA and the low scale precinct of the former Health Department building; * the heritage significance of the former Health Department building is inextricably linked to its ability to reflect the status of Macquarie and Bridge Streets as a prestige address for many government institutions, and the precinct's heritage values would be harmed by the erection of a tower in the low-scale setting; and * while the proposal had clear identifiable positive heritage outcomes for the former Health Department building, the benefit of the proposed restoration and adaptive reuse of retained elements was outweighed by the significant adverse heritage impacts to the precinct, caused by the tower component (Ex M3, p 834). 1. At Stamford's request, the meeting of 20 August 2014 did not proceed. As noted by Stamford in submissions, the GTAs issued on 5 March 2014 do not relate to the amended development application lodged by Stamford in July 2014; and the amended development application has not been the subject of consideration by the Heritage Council given the commencement of the Class 1 appeal. Stamford does not rely on the GTAs issued by the Heritage Council in March 2014. 2. Section 39(6A) of the Court Act provides that the Court may determine the appeal whether or not the consent authority has obtained the GTAs of each relevant approval body, in this instance the Heritage Council; is not bound to refuse an application for development consent because an approval body has decided not to grant its approval or has failed to advise whether or not it will grant its approval; and may determine the appeal even though a development consent granted as a result of the appeal would be inconsistent with the general terms of approval of an approval body. As a consequence, there is no barrier to the Court determining the appeal in the absence of GTAs from the Heritage Council. 3. The focus of assessment for an approval under Part 4 Div 3 of the Heritage Act would be on the former Health Department building, as a building listed on the State Heritage Register, having regard to the considerations identified in s 62 of the Heritage Act. A broader consideration of impacts on other heritage items in the locality and precincts is required by cl 5.10 of the LEP and section 3.9 of the DCP, and s 79C(1)(b), (c) (d) and (e) of the Act. 4. The Council contends (contention 5) that the proposed development fails to adequately conserve and enhance, and will have an adverse impact on, the heritage significance, the setting, character and views of: * the heritage item on the site; * the heritage items in the vicinity of the site; and * the local, state and national significance, and potentially of international significance, of the site and locality. 1. Mulpha contends that the proposed development will have a dramatic, substantial and negative impact on the character, setting and significance of "Colonial Sydney", being part of the National Heritage List nomination as detailed on p19 of the report of the Heritage Branch report for the Heritage Council's Approvals Committee meeting of 20 August 2014. 2. It was common ground that the site is located in an area of significant heritage value. Extensive evidence was provided that the site is located in a section of Sydney's CBD, and of Macquarie Street in particular, that has at least local and state heritage significance if not national and international significance. It was not in dispute that any development on the site must have regard to its impact on the existing heritage listed item on the site, and on heritage items adjoining and in the immediate vicinity, including the broader heritage setting. The 2012 LEP and 2012 DCP controls reinforce the significant heritage context, with the site included in the Macquarie Street SCA. 3. In essence the position of both respondents was that the conservation of the former Health Department building proposed as part of the application had merit but the scale, height and form of the tower behind it would have a significant and negative impact on the heritage setting: of this building; on Transport House; and on the former Treasury Building, the RAC building and the Justice and Police Museum. Further, that it is inappropriate given the heritage significance, scale and setting of this section of Macquarie Street and the site's location in the Macquarie Street SCA and the area referred to as "Colonial Sydney". 4. The heritage experts for both respondents considered that due process had not been followed in determining the heritage values of the site, in that the Conservation Management Plan (CMP) submitted in support of the application ostensibly covered only the heritage item on the site and not the heritage setting of the site. They contended that this section of Macquarie Street between Bridge Street and Albert Street exhibits a low rise character preserved as a consequence, and reflective, of the fact that Macquarie Street was a processional street dominated by Government buildings in a historical civic setting associated with, and including, the Domain and the Royal Botanic Gardens. In their view, such a setting should not be compromised by a tower development unorthodox in design and situated so close to Macquarie Street or so visually dominant, particularly when viewed from Albert Street. 5. In the opinion of Mulpha's heritage expert, Mr Croker, no tower development on the site is appropriate given none existed forward of a 30m setback to Macquarie Street in this section of Macquarie Street, and the tower proposed as part of this development would therefore have an unacceptable heritage impact due to its height and scale. Mr Cserhalmi, on the other hand, considered that a sensitively designed tower which complied with the upper level street setbacks as a minimum could be supportable. Mr McDonald's opinion, as summarised in oral evidence, was that the ground level elements are a distinguished contribution to the streetscape; the heritage item will stand on the corner in an enhanced setting; and moving the podium back and locating the tower well above Albert Street is an innovative treatment. 6. Stamford's position in essence was that: the process for establishing the heritage values were not determinative; the CMP was intended to refer only to the heritage item being refurbished; the building had been designed to improve the setting and visibility of the listed heritage item on the site and had been guided and informed by a number of heritage documents and meetings with the heritage advisors of the Council; and the development's design was considered by the Council's Design Advisory Panel to be a skilful solution for the site. Findings 1. Any development on the site that complied with Council's interpretation of its setback and height controls, would introduce a "tower" element to a historically significant section of Macquarie Street where a tower of this scale, height and setback does not currently exist. 2. A similar issue was before Bignold J in APT Peddle Thorp & Walker Pty Ltd v Sydney City Council [1997] NSWLEC 186, where a tower development of greater height was proposed on the adjacent site, above Transport House. Whilst the planning controls were different, the heritage context, values and relevant considerations were no less relevant than they are in this application. Bignold J noted: * of the block bounded by Albert Street, Macquarie Street, Bridge Street and Phillip Street, the only tower building was the existing tower of the Intercontinental Hotel, all other buildings in the precinct being low or medium rise heritage items; and * only if the precinct is extended to include development on the western side of Phillip Street would tower developments exert "a pronounced physical and visual impact and influence". 1. We note that, based on the view and the documentary evidence before us, that is still the position. Bignold J concluded to the extent that the planning controls warranted consideration of the impact of the tower proposal on the adjoining buildings to the north of Transport House, …there would be an adverse impact on those heritage buildings, by virtue of the elimination of the present transition in scale between the low rise Justice and Police Museum buildings, through the mid-rise Transport House to the high-rise Inter-Continental Hotel and its replacement by the high-rise tower (set back only 3 metres from the northern boundary) which would visually overwhelm the low-rise heritage buildings. 1. That appeal was determined 15 years ago, for a different site and under different controls, however the concerns were similar to those identified in this appeal. Stamford has since undertaken a design competition for the site in the knowledge of that decision, and proceeded with an application on the basis of a design which the Council generally accepts reflects the winning design and on basis of development controls which the Council accepts facilitate development of the site for a tower. That tower can be at least 55 metres in height, with up to 10% increase in height allowable for a building exhibiting "design excellence" and with an upper level (tower) setback of only 10 metres from Macquarie Street. 2. Setting aside, for the moment, Mulpha's contentions about which setbacks the Council has actually adopted for the site in the 2012 DCP, the evidence before us does not establish why the Council considers appropriate controls for the site now to be a podium height of 22m and a tower height of up to 60.5m from existing ground level with the tower element setback only a minimum of 10m from Macquarie Street and 8m from Albert Street. In the context of the concerns expressed by the Heritage Council, and the evidence as to the significance of the context of the site in the precinct, and the lack of development at such a height set this close to Macquarie Street north of Bridge Street, the basis for such controls can only be deduced as being a consequence of either the fact that they reflect the general form and location of the winning design for the site selected in 2011 (having regard to similar heritage considerations), or the fact that the whole of the site itself is not identified as having heritage significance, or both. 3. Clause 5.10 of the 2012 LEP contains heritage conservation provisions. Whilst the site is not in a defined Heritage Conservation Area as prescribed by the 2012 LEP, it does contain a listed heritage item (the former Health Department building) and adjoins or is close proximity to several listed heritage items. The objectives of cl 5.10 include to "…conserve the heritage significance of heritage items.., including fabric, settings and views". The objectives of the heritage provisions in section 3.9 of the 2012 DCP include to "enhance the character and heritage significance of heritage items …and ensure that infill development is designed to respond positively to the heritage character of adjoining and nearby buildings and features of the public domain". 4. It is the conservation of the heritage items and in particular the setting of these items that was of most concern to the experts for the respondents, and the objectors, and is also a relevant consideration for the Court. 5. Relevantly, at cl 5.10(4) there is a requirement for the consent authority, before granting consent in respect of development on sites containing a heritage item or on land within the vicinity of heritage items, to consider the effect of the proposed development on the heritage significance of the item/s, which by extension having regard to the objectives, include their settings. To assist in this consideration, the consent authority (under cl 5.10(5)) can require the preparation of a heritage management document to assess the extent to which the carrying out of the proposed development would affect the heritage significance of the item(s); and, under cl 5.10(6), may require the submission of a heritage conservation management plan (CMP) before granting consent. 6. Stamford argued that such documentation was prepared and demonstrated the acceptability of the impact in the case of cl. 5.10 (5), and met CMP requirements in terms of cl. 5.10 (6). The respondents submitted that the CMP was inadequate in that it only addressed (and not completely) the conservation requirements for the former Health Department building and not other heritage items. Stamford submitted that the CMP should reasonably only address this item; that it was not a prerequisite to the granting of consent; and the Council had not advised that it was deficient. In any event, we do not consider that the adequacy or otherwise of the CMP is determinative in this appeal, as at best it is a management tool to conserve a specific item, the adequacy of which can be conditioned. It is also only required under cl 5.10(6) after the consent authority has considered the heritage significance of both the item to which it is to apply and the extent of changes proposed to that item. 7. The fundamental heritage question is whether we could be satisfied as to the effect of the proposed development on the heritage significance of listed heritage items, including their settings, noting that one of the principles for development in the SCA is to "conserve and enhance" the heritage significance of the area. Stamford's position is that the design of the development has had regard to its heritage context, and in fact improves the setting of the listed heritage item on the site. The design aspects of the proposed development have been considered above, and are also addressed below. In our view a determination, as part of a site specific DCP or Stage 1 DA process, of whether a tower is appropriate in this location, and if so, its height and setbacks, would provide the parameters for a proper assessment of the impacts on heritage significance of the former Health Department building, the heritage items on the adjoining sites, and on the locality. In that regard we agree with Mr Cserhalmi who, in oral evidence, was supportive of a transparent and considered process which would be undertaken in the form of a site specific DCP and endorsed CMP. Ancillary urban design and amenity issues 1. The Council and Mulpha raised issues with a number of design aspects of the proposed development, in addition to the concerns relating to height and setbacks considered above. The Council raised the non-compliance of the building with solar access and ventilation requirements to the proposed apartments; building separation; and private open space. Mulpha had additional concerns with insufficient communal open space and inadequate pedestrian through-site links, through the reliance on subterranean common areas and isolated open terraces on upper levels to meet numeric requirements particularly given the private open space non-compliances; and having pedestrian through-site links with limited width, utility and attractiveness. The expert urban designers did however, agree that the links could be widened and/or redesigned to address these concerns (Ex C11, p 51). 2. In considering the development overall, both Ms Robinson and Ms Morrish were of the view that many of the proposed apartments were inadequate in their design, in terms of inadequate or no private open space; inadequate cross ventilation; and inadequate setbacks leading to privacy impacts. In their view, the inadequacies resulting from various non-compliances with provisions of both the 2012 DCP and the RFDC were a consequence of the large number of small apartments in the podium and the inadequate setbacks of the tower component. 3. As a general comment on the asserted DCP non-compliance, Mr Cirillo was of the opinion that the tower component responds directly to the 2012 LEP controls including height and sun access plane limits, and that the angled design of the development, with splayed setbacks, is a better design response than an envelope reflecting the Council's interpretation of the 2012 DCP controls; and only minor variations to those controls are proposed in any event. Mr Harrison considered the design matters raised by the respondents did not require significant design changes and should be dismissed or addressed by conditions, other than in terms of private open space, where some minor design changes may be warranted and could be undertaken. 4. We briefly consider below the more significant design issues, noting that collectively there are, in our view, a number of other relatively minor design issues, such as the amenity of common areas and of pedestrian links, that would need to be addressed and likely could be addressed, before development on the site proceeded either through amendments to the plans or by conditions of development consent. Solar Access and Ventilation 1. It was not in dispute that the proposed development does not comply with the solar access provisions of the 2012 DCP or the RFDC which require that a minimum of 70% of the apartments receive 2 hours of sunlight in winter. In the Council's calculation, at best 45% would comply. It was generally agreed that overall, approximately 43% - 45% of all apartments will achieve the required 2 hours of sunlight and 61% the cross ventilation requirements. The Council accepts that cross ventilation for the tower apartments is adequate in the context. 2. Ms Robinson estimated that only 22% of podium apartments will meet the 2 hours of sunlight requirement and 43% the ventilation requirements. This non-compliance was improved for the tower component with some 55% of tower units achieving the 2 hour sunlight and 75% ventilation requirements. In Ms Robinson's opinion, given the site's location and orientation, this degree of compliance when considered in conjunction with poor ventilation to a number of apartments is unreasonable and unacceptable, and would result in unacceptable levels of amenity. 3. Ms Robinson considered that solar access in compliance with the RFDC requirements could be met with a redesign and a reconsideration of the location of residential components of the development, as in her opinion there are significant failures in the amenity of the podium apartments, and that a slimmer tower which complied with the upper level front and rear setbacks required by the 2012 DCP would offer the potential for dual aspect apartments. Ms Morrish shared this view and considered that it should be possible, even with the site's constraints, to achieve a design that has 70% of units achieving 2 hours of solar access as required (Ex C11, p42). 4. Mr Harrison was of the opinion that more than 70% of units would achieve the 2 hours if the hours were extended from 8.30am to 3.30pm rather than from 9am to 3pm, and this relaxation has been applied to other developments. Furthermore, virtually all apartments have, in his opinion, excellent daylight access due to floor to ceiling glass usage on external walls and with no apartments having a southern aspect only, which is rare in the CBD, and with north, west and east facing apartments having a good to excellent outlook. He suggested that the Court could condition the consent to meet the solar access control by requiring shallower vertical blades but this would reduce the civic dignity of the building's presentation to Macquarie Street. Finally he provided examples of where the Council had required only around 50% of units to have the required 2 hours of solar access and he considered 50% to be an acceptable level of compliance on this site (Ex C11, p44). Private Open Space 1. The urban design experts for the Council and Mulpha considered that the development does not comply with the private open space (POS) requirements of the 2012 DCP and the RFDC in terms of: * the number of dwellings which have access to private open space (75% required, 45% provided); * the dimensions of the open space (minimum area of 10m² required, between 6.4m² and 8.1m² provided); and * the provision of Juliet balconies for some apartments (27.5% provided, 25% permitted), and whether these should be additional rather instead of private open space, where the suggested RFDC balcony minimum areas are 8m². 1. In Ms Robinson's calculation, only 11% of podium apartments have POS and none of the spaces comply, 71% of the tower apartments have POS but only up to 4% comply, and in total 44% of all apartments have complying POS and only 4% have complying balconies. 2. Stamford submitted that wintergardens and floor to ceiling windows with balustrading are proposed to meet the POS requirements, and are a commonly accepted alternative form of POS for CBD apartments. However, in Ms Robinson's calculation, even if wintergardens are considered acceptable, the total number of apartments with acceptable POS or balconies would still only be 44%. In her view, floor to ceiling windows with balustrades are not POS and should not be counted, and therefore 56% of apartments have no POS - and most of these are in the podium where amenity is already poor in terms of solar access and proximity to adjoining buildings. Mr Harrison was of the view that, if the Court accepted wintergardens as acceptable balconies or POS, a condition could be imposed requiring 70% of apartments to have wintergardens of at least 10m² as the apartments are large enough to accommodate such a condition. Findings 1. There are a number of areas where Stamford seeks concessions or departures from 2012 DCP and/or RFDC controls on the basis of the overall design outcomes being achieved. Based on Mr Harrison's evidence, there are some aspects on which amendments or appropriate conditions could be considered so as to achieve or more closely achieve compliance. 2. We are of the view that, whilst individually concessions may be warranted or substantiated, and the dispensations sought are as a result of the acknowledged constraints of the site, collectively they amount to a likely reduced amenity for future occupants of a number of the proposed apartments and require a more detailed analysis of amenity issues, and a more considered response in terms of the detailed design and land use mix proposed for the site. It is likely that most if not all of the amenity issues could be resolved in a proposal that is designed in response to a site specific DCP which considers a range of matters, including view impacts, and which is set back to meet the minimum upper level and rear setbacks of the DCP as it has been interpreted by the Council and Stamford. View impacts 1. Mulpha contends that as a consequence of the non-compliance with the 30m setback above nominated street frontage height control, the proposed development will result in unreasonable view loss impacts from north facing rooms on levels 11-27 of the Intercontinental Hotel, with 52 rooms affected, on the evidence of Dr Lamb. A compliant development would retain views of the Opera House. 2. The Council would take no issue with view loss if the tower complied with the height limit and setback controls, and the view loss for The Astor and the Intercontinental Hotel would have to be accepted. However, the Council submits that the non-compliances eliminate important elements of the views to the west of the Opera House, the north pylon of the Harbour Bridge, and the views to the water. 3. The urban design experts agreed that, if the 2012 DCP requires a 30m upper level setback from Macquarie Street, and the proposed building complied, there would be no view impacts to adjacent buildings and that, if that setback is 10m as argued by the Council and Stamford, then the non-compliance with that setback would have only minor view impacts. The experts also agreed that there are significant differences in terms of view impacts depending on which height non-compliance determination is adopted (Ex C11,p36). 4. View loss was a concern raised by the Council but only in terms of public interest considerations, namely the concerns raised in objections and by residents of existing apartments in adjacent residential buildings, The Astor and Quay Apartments. The Council's position was that view loss was only an issue because of the development's non-compliance with various setback controls and the height control. 5. Both Ms Robinson and Mr Williams considered that these non-compliances have a real impact on views available from both The Astor and rooms in the Intercontinental Hotel, but not from Quay Apartments. Further that, simply because The Astor would continue to have significant easterly views would not justify the elimination of northerly views to Circular Quay from some apartments and the roof terrace of The Astor, which was a direct consequence of the building's non-compliances. In the Council's view, the clause 4.6 objection to non-compliances with the height does not address this issue, given the Council's calculation of height and the consequent exceedance, and the different basis on which Stamford's cl 4.6 objection was framed. 6. View loss impacts were raised by Mulpha in terms of impacts on certain rooms in the Intercontinental Hotel. It was Mulpha's contention that the non-compliances associated with the upper level setbacks (which they contended should be 30m) will result in unreasonable view loss from 36 north facing premium hotel rooms situated at Levels 11-27 of the hotel. The development therefore does not comply with the view sharing principles of Tenacity Consulting v Warringah Council [2004] NSWLEC 140 insofar as it impacts on the Intercontinental Hotel. 7. The experts agreed that even if the upper level street setbacks are as submitted by the Council and Stamford, there are significant differences in what the view impacts would be depending on which interpretation of the height of the proposed building is adopted. There is significantly more impact on iconic views, and on views generally, from both the hotel rooms and The Astor apartments, if the Council's interpretation of height is accepted, with the views impacted including those of the Opera House, Sydney Harbour, the Harbour Bridge, the Royal Botanic Gardens, and the land/water interface, with the impacts varying from minor to severe from different vantage points. 8. These view impacts are clearly significantly less than if a 30m upper level setback applies, however there are still view impacts for the Intercontinental Hotel as previously outlined which are a result of the combination of the nil setback of the development to the western (rear) boundary and the height, with the experts agreeing that the impact on hotel rooms from Levels 18 up to level 23 was severe (Ex C11, p 38). Mulpha submits that, applying the fourth step of the Tenacity assessment, the reasonableness of the proposal that is causing the impact must be considered, with a complying development considered more reasonable than one that breaches controls. Where a breach is caused by non-compliances even a moderate impact may be considered unreasonable whereas with a complying development there is still a test to determine if a more skilful design could give the same development potential for the applicant and reduce the view impacts to neighbours. It was Mulpha's submission that a development complying with even just the height controls and rear setback would have significantly less impact than the current proposal. 9. Dr Lamb considered that there is a difference in the view loss from a commercial building in contrast with commercial visitor accommodation, for which views are more important. In his opinion, there is a gap in the 2012 DCP in that view impacts on serviced apartments are a consideration but hotel rooms are not specifically mentioned, yet both serve a similar function. The premium rooms in the International Hotel are those with iconic views, and a number of these rooms will have severe impacts associated with the proposed development. In Dr Lamb's opinion, the rear setback non-compliance, combined with the proposed height, has a severe impact on a number of rooms at several levels in the Intercontinental Hotel in terms of their current views to the north and north east across the harbour. In his opinion, at least 4 rooms on each level from Level 18 to Level 23 would have significant view impacts (Ex C11, p40). 10. Mr Harrison notes that out of 500 hotel rooms, only 36 rooms in the Intercontinental Hotel are significantly affected by the development being north facing rooms on the upper levels. Whilst there is a loss of a view of the Opera House views are generally retained of the Harbour Bridge and the Botanic Gardens. In his opinion, it is unreasonable to expect views to be maintained across boundaries and from non-residential uses. In a city context views are not guaranteed and are generally harder to protect. Mr Harrison commented that the Intercontinental Hotel itself substantially breaches the 2012 LEP height control, and towers above the Botanic Gardens sun access plane. He was also of the opinion that the claimed non-compliances do not make a significant difference to the view impacts from the rooftop communal terrace of The Astor compared to the view loss that would result from a compliant development: this view is panoramic and expansive, and views to the Opera House and Botanic Gardens would be retained. Findings 1. In addition to observations on the view from rooms on the north facing side of the Intercontinental Hotel, The Astor, and Quay Apartments, in evidence are detailed photomontages of those views in Mr Rohipa's Statement of Evidence (Ex H, Appendix D), and of views from the Hotel Intercontinental in Dr Lamb's Statement of Evidence (Ex M6, Appendix A). Based on the view and the photomontages, we are satisfied that the proposed development would impact on views to the north including the Opera House and Sydney harbour both for rooms in the Intercontinental Hotel, and apartments and communal open space areas of The Astor apartments, and views to the south and south east from Quay Apartments. 2. In Tenacity, Roseth SC set out principles for determining whether view sharing is reasonable: 25 The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) To decide whether or not view sharing is reasonable, I have adopted a four-step assessment. 26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured. 27 The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic. 28 The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating. 29 The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable. 1. The experts disagreed as to whether the view impacts should be described as minor, moderate, or severe. Mr Harrison, for example, noted that the views of the Opera House are retained for The Astor roof terrace, and that the intrusion of the proposed development could not in his opinion be said to be significant given the expansive nature of the view (Ex C11, p 41). However, Mr Williams considered that the loss of the view of part of the Harbour Bridge from the roof terrace is significant (Ex C11, p 39). Mr Harrison considered that the impact on the central rooms of the Intercontinental Hotel on the north side is moderate to severe, but in any event acceptable in terms of view sharing, whereas Dr Lamb described the view loss as severe. 2. We accept that the view impacts on the Intercontinental Hotel are substantial, based on the extent of the views of the Harbour and Opera House lost for rooms on the north facing side, and the use of those rooms for visitor accommodation. Based on the view, in particular that part from the roof terrace, we accept that for The Astor apartments those impacts would not be regarded as being as significant. However, in both instances, the impacts could be avoided or reduced by a development which complied with the height and setback controls in the 2012 DCP as interpreted by the Council. Even if the required upper level setbacks are as determined by the Council, which would permit a tower form generally in the manner proposed, there are severe impacts associated with the non-compliance with the rear setback and the exceedance of the height when determined in accordance with the methodology for height definition which we have accepted. 3. Determination of the setbacks and height through a site specific DCP or Stage 1 DA process would enable consideration of view sharing alternatives, and the issue of view loss is a further factor in our conclusion that it is not unreasonable or unnecessary to engage in that process. Public Interest 1. The Council contends that the proposed development is not in the public interest as it has not properly or orderly applied the planning controls applicable to the site, or addressed the matters raised in submissions on the 2013 DA. We have discussed above the application of the 2012 LEP and 2012 DCP provisions, noting in particular the impacts arising from the non-compliance with the height control and the side and rear setback controls, and the difficulty in interpreting, and applying, the setback above street frontage height provision for Macquarie Street and Albert Street. 2. The experts disagree as to the appropriateness of the departures from the controls. Mr Cirillo considered that the development represents a thoroughly considered design approach to a complex site; and in comparison to 2012 DCP controls, and the existing building, the proposed development sits as a "recessive and appropriate medium scale infill building in Macquarie Street" and will have no demonstrable negative impact on Macquarie Street, the Opera House or the Botanic Gardens. Furthermore, the proposed building does not propose a podium or tower that is greater in volume than the maximum permissible building envelope under the 2012 DCP (Ex C10, p 26). 3. In contrast, Mr Chambers was of the opinion that the public interest is best satisfied by having clear, consistent and readily understandable controls and for the development to then responsibly and appropriately respond to those controls (Ex C10, p 27). 4. In our view, the development proposes a number of departures to existing general and specific controls, with adverse impacts on adjoining uses, and which would result in a visually prominent building located within a significant heritage context. It may be that through the process of developing a site specific DCP or Stage 1 DA a development generally of the scale and form proposed would emerge, with a tower element. That process would include public consultation and participation, and would provide certainty as to the minimum upper level rear and side setbacks and a view impact analysis of the resultant form. Conclusion 1. It was common ground that this is a sensitive site, with a listed heritage item on the site, and heritage items on two boundaries and on the opposite corner. Whatever is developed on the site has the potential to have adverse impacts not just on the adjacent heritage items and streetscapes, but on the amenity of future occupants of the development, and of existing occupants of adjacent development. This is irrespective of whether the adjacent development is of a commercial or residential nature, as evidenced by the concerns raised as to impacts on the Intercontinental Hotel and to the users of Transport House. The architectural merit of the building itself was largely not in dispute, however the context of the site and, in particular, the significant heritage values ascribed to its location, is a key issue. 2. We accept Stamford's argument that a site specific DCP could not of itself address a number of potential amenity issues arising from development, such as the extent of solar access, ventilation, privacy or private open space provision which would require resolution at DA stage. However, a site specific DCP would establish building envelopes and land use principles, and a framework in which a development could then be designed which minimises adverse amenity outcomes. By establishing, for example, minimum setback controls, at all levels of the development and to all boundaries, and proposed uses, in a process where those controls are publicly exhibited and transparent, a site specific DCP would indicate for neighbours and the broader public, in a way that a competitive design process could not, the likely impacts of future development on the site, in terms of broad amenity issues, views, and heritage and streetscape impacts. 3. We accept that the 1996 DCP would have allowed no tower on the site, yet all three designs in the competitive design process undertaken when that development control plan was in force had a tower. We also accept that the 2013 DA has been developed in consultation with officers of the Council and the Heritage Council on the premise of a tower since then, even with changes to the planning controls. 4. The Council conceded that, had the development complied with the existing height and setback controls for the site as the Council interpreted them, it may have been unreasonable or unnecessary to require a site specific DCP prior to granting consent, and that view impacts would not have been pressed. However, as the Council and Mulpha both argued, the development departs from all of these controls, on a constrained heritage site that deserves the best possible outcome. In our view it is inappropriate to rely on the existing 2012 DCP minimum upper level setback controls to argue why a site specific DCP is not required, if those controls are not complied with. 5. We accept that a development that met the 2012 DCP setback controls as interpreted by the Council and Stamford could potentially also have adverse impacts on the streetscape, on views from The Astor and the Intercontinental Hotel, on privacy and views for Quay Apartments, and on the former Health Department building. However, a site specific DCP or Stage 1 DA would address those considerations, as well as addressing the appropriate height for the proposed building, in a transparent process. 6. We are not satisfied that cl 7.20(2) of the 2012 LEP is met, or that a site specific development control plan addressing the matters required by cl 7.20(4) (or a Stage 1 DA) is unreasonable or unnecessary in the circumstances. For that reason, consent cannot be granted to the proposed development. Orders 1. The Orders of the Court are: 1. The appeal is dismissed. 2. Development Application D/2013/2011 for the retention and adaptive re-use of the former Department of Health building; partial retention and re-use of part of the Sir Stamford Hotel building; construction of a 19 storey tower building accommodating residential apartments, retail/commercial floor space and basement car parking spaces; and ancillary landscaping and public domain improvement works, at 93-97 Macquarie Street, Sydney, is refused. 3. The exhibits are returned except for Exhibits A, C1, C13 and M1. Linda Pearson Jenny Smithson Commissioner of the Court Acting 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: 28 May 2015