Land and Environment Court New South Wales Medium Neutral Citation: Vision Land Glebe Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1488 Hearing dates: 5-7 September 2016 Date of orders: 26 October 2016 Decision date: 26 October 2016 Jurisdiction: Class 1 Before: Tuor C Decision: (1) The appeal is dismissed. (2) The Staged Development Application (D/2015/1398) which sets out the concept proposal for the conservation of a heritage item for non-residential use; demolition of the existing Metropolitan Remand Centre; building envelopes for residential use with basement parking; and associated site works at 357 Glebe Point Road, Glebe, is refused. (3) The exhibits, except Exhibits 1 and A, are returned. Catchwords: DEVELOPMENT APPLICATION: Staged development application, concept proposal for conservation of a heritage building for non-residential use, demolition of other improvements, building envelopes for residential use and basement parking. Impact on heritage item and heritage conservation area; distribution of floor space and height on the site; building separation; solar access. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development Sydney Local Environmental Plan 2012 Cases Cited: Benevolent Society v Waverley Council [2010] NSWLEC 1082 BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA226 Veloshin v Randwick Council [2007] NSWLEC 428 Zhang v Canterbury Council [2001] NSWCA 167 Category: Principal judgment Parties: Vision Land Glebe Pty Ltd (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: Mr A Galasso, SC (Applicant) Mr P Clay, SC (Respondent) Solicitors: Landerer & Company (Applicant) Council of the City of Sydney (Respondent) File Number(s): 2016/163200 Judgment 1. Vision Land Glebe Pty Ltd (applicant) is appealing under s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Council of the City of Sydney (council) of a Staged Development Application (D/2015/1398) which sets out the concept proposal (Concept Application) for the conservation of a heritage item for non-residential use; demolition of the existing Metropolitan Remand Centre; building envelopes for residential use, with basement parking; and associated site works at 357 Glebe Point Road, Glebe (site). 2. The main issue that remains in dispute are whether: 1. the Metropolitan Remand Centre is of heritage significance and warrants retention (Contention 1); 2. the proposal will have an adverse effect on the heritage significance of the Bidura House and the Heritage Conservation Area (Contention 2 and 3); 3. the Bidura House group and grounds should be included as site area for the purpose of calculating the maximum floor space ratio for the site (Contention 4); 4. the height, bulk and location of the proposed towers is acceptable (Contention 5); 5. acceptable building separation is provided to adjoining development at 2A Forsyth Street (Contention 7); 6. the overshadowing of the Ferry Road properties is acceptable (Contention 8); 7. the Camphor Laurel tree should be removed (Contention 12). 1. The other Contentions raised by council were resolved through additional information, amendments to the plans and the agreement of the experts or were not pressed by council. Site and locality 1. The site is located on the eastern side of Glebe Point Road. It comprises Lot 1 DP 64069 with a total area of 5,556sqm. It has frontages to Glebe Point Road (39.735m), Ferry Lane (117.285m), and Avon Street (21.785m). The site is currently used for the Bidura Children's Court. 2. The western part of the site is developed with a two storey Victorian Regency style building that was built as a house, known as Bidura House. It has a detached Italianate "ballroom" and formal gardens fronting Glebe Point Road. 3. The central and eastern part of the site is developed with a "Brutalist" style building which steps up to a maximum of five storeys plus two levels of basement car parking. The building is known as the Metropolitan Remand Centre (MRC). The building is accessed via pedestrian and vehicular entries from both Glebe Point Road and Ferry Lane. There are two large canopy trees adjoining the north east corner of the MRC. 4. A landscaped area is located at the eastern corner of the site, near the intersection of Ferry Lane and Avon Street, which is publically accessible. 5. The Glebe tunnel of the Inner West Light Rail Corridor traverses the south-west corner of the site. 6. Adjoining Bidura House to the north in Glebe Point Road, is a two storey semi-detached dwelling (359-361 Glebe Point Road). Immediately to the south are commercial properties, including the Toxteth Hotel on the corner of Ferry Street. On the opposite side of Glebe Point Road are two storey semi-detached dwellings (216, 218 and 220 Glebe Point Road). 7. To the north, that part of the site occupied by the MRC adjoins two eight storey plus plant residential flat buildings (2 and 2A Forsyth Street). The rear of the site adjoins single storey semi-detached cottages (8-10 Avon Street). Other development in Avon Street is one and two storey terraces. 8. To the south of the site, on the opposite side of Ferry Lane, are a row of single storey terraces that front Ferry Road (1-41 Ferry Lane). Some dwellings have attics and garages or parking with access off Ferry Lane. 9. The surrounding locality is predominantly one to three storey dwellings with a mixture of residential and commercial uses along Glebe Point Road. Statutory framework 1. Part 4, Division 2A of the EPA Act contains provisions for staged development applications which include: 83B Staged development applications (1) For the purposes of this Act, a staged development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications. The application may set out detailed proposals for the first stage of development. (2) A development application is not to be treated as a staged development application unless the applicant requests it to be treated as a staged development application. (3) If consent is granted on the determination of a staged development application, the consent does not authorise the carrying out of development on any part of the site concerned unless: (a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or (b) the staged development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent. (4) The terms of a consent granted on the determination of a staged development application are to reflect the operation of subsection (3). 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. 83D Status of staged development applications and consents (1) The provisions of or made under this or any other Act relating to development applications and development consents apply, except as otherwise provided by or under this or any other Act, to a staged development application and a development consent granted on the determination of any such application. Note. Applicable provisions in respect of staged development applications include provisions relating to designated development, integrated development and regulations made under section 105. (2) While any consent granted on the determination of a staged development application for a site remains in force, the determination of any further development application in respect of that site cannot be inconsistent with that consent. (3) Subsection (2) does not prevent the modification in accordance with this Act of a consent granted on the determination of a staged development application. Note. See section 95 (2) which prevents a reduction in the 5 year period of a development consent. 1. The applicant has requested that the Concept Application be treated as a staged development application for the purposes s 83B as it sets out the concept proposal for the development of a site and the detailed design would be the subject of subsequent development application(s). In determining the Concept Application, the matters of relevance under s79C are to be considered, which would include State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65), Sydney Local Environmental Plan 2012 (LEP 2012) and Sydney Development Control Plan 2012 (DCP). 2. The site is within the B2 Local Centre Zone under the LEP and the development is permissible with consent. The objectives of the zone are: ● To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. ● To encourage employment opportunities in accessible locations. ● To maximise public transport patronage and encourage walking and cycling. ● To allow appropriate residential uses so as to support the vitality of local centres. 1. Clause 7.20 of the LEP requires the preparation of a development control plan for the development as it is for a new building (cl 7.20(1)(a)) and is on land outside Central Sydney greater than 5000sqm and would result in a development with a height greater than 25m (cl 7.20(2)(b)). However, under s83C(2) of the EPA Act the requirement in cl 7.20 of the LEP to prepare a development control plan may be satisfied by the making and approval of a staged development application. The staged application is to contain the information required under cl 7.20(4) of the LEP, which includes: (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. 1. Under cl 4.3 and the Height Map of the LEP, the maximum height of a building on the site is 9m and 27m. The 27m height limit applies to an area that is 15m from Glebe Point Road to 50m from Avon Street and the 9m height limit applies to the rest of the site. The objectives of the height control relevantly include: (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, 1. Under cl 4.4 and the Floor Space Ratio (FSR) Map, the maximum FSR is 1.5:1. The objectives of the height control are: (a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future, (b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic, (c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure, (d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality. 1. Clause 4.5 provides provisions for the calculation of FSR and site area which include that for the purpose of determining the FSR of a development on only one lot, the site is the area of the lot (cl 4.5(3)(a)), and that the site area for proposed development must not include a lot additional to a lot or lots on which the development is being carried out unless the proposed development includes significant development on that additional lot (cl 4.5(6)). 2. Schedule 5 - Environmental Heritage of the LEP includes the following listing: Locality Item name Address Property description Significance Item no. Glebe House "Bidura" including interiors, former ball room and front garden 357 Glebe Point Road Lot 1, DP 64069 Local I763 1. The Heritage Map includes the whole of the site as a Heritage Item. However, the Dictionary in the LEP includes the following definition of a heritage item: Heritage item means a building, work, place, relic, tree, object or archaeological site the location and nature of which is described in Schedule 5. 1. The parties agree that because the Heritage Map is not referred to in the definition of Heritage Item that, although the whole of the lot is identified in Schedule 5, the listing only refers to the Bidura House group and the rest of the site is not listed as a heritage item. While I have accepted this position, it is open to interpretation as to whether the whole lot is the item but only the Bidura House group is of heritage significance. Notably, the MRC is included in the Heritage Inventory Sheet (HIS) for the item under the State Heritage Register (SHR) Criteria c (Aesthetic Significance). It is not uncommon for the Schedule of Heritage Items to include the whole lot as the item and for the HIS and a heritage conservation management plan to determine those elements on the site that are of significance, including an appropriate curtilage. 2. The site is also within the Glebe Point Road Heritage Conservation Area (HCA) which is identified on Schedule 5 and the Heritage Map (C28). 3. Clause 5.10(4) of the LEP provides: (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). 1. Most of the site adjoins the Glebe Point Conservation Area (C28) and under cl 5.10(5) a heritage management document may be required that assesses the extent to the proposed development would affect the heritage significance of items or heritage conservation areas in the vicinity. 2. Sydney Development Control Plan 2012 (DCP) is relevant. Section 2 of the DCP includes Locality Statements. The site is in the Glebe and Forest Lodge Locality and within the Glebe Point Road Neighbourhood Character Area (s2.6.1) and the majority of the site adjoins the Glebe Point Character area (s2.6.10). The character statement and supporting principles for the Glebe Point Road Neighbourhood Character Area SCA relevantly include: Development along Glebe Point Road is to retain and reinforce the consistent 19th century streetscape consisting of fine grain small scale, between 2-3 storey buildings, diverse and vibrant mix of commercial and retail uses, the pedestrian focussed 'main street' and the mature landscaping and street plantings. Principles (a) Development must achieve and satisfy the outcomes expressed in the character statement and supporting principles. (b) Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes. (c) Protect important views to the north and along east-west streets towards Central Sydney. (d) Ensure the design of the rear portions of buildings minimises the impact of building bulk on adjacent buildings, where the ground level of buildings are lower at the rear than at street level. (e) Retain the existing scale of buildings and align with the street at the ground level. (f) Design building bays and openings to be vertically proportioned and consistent with the rhythm along Glebe Point Road. (g) Consider the heritage significance of individual buildings and streetscape groupings as a major determinant for height, massing and façade proportions in any potential redevelopment or adaptive re-use opportunity. 1. Section 3 of the DCP provides General Provisions, including Design Excellence and Competitive Design Process (s3.3) and Heritage (s3.9), in particular, Heritage items (s3.9.5), Heritage conservation areas (s3.9.6) and Contributory items (s3.9.7). The site, including the MRC, is identified as "contributory" on the Building Contributions Map. The adjoining residential flat buildings (2 and 2A Forsythe Street) are identified as "detracting". 2. Section 4.2 of the DCP applies to the Residential flat, commercial and mixed use developments and includes provisions for Height in storey (s4.2.1.1) and Amenity (s4.2.3), in particular Solar Access (s4.2.3.1). 3. State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development applies to the residential development. Clause 28 requires consideration of the advice (if any) obtained from the design review panel, the design quality of the development when evaluated in accordance with the design quality principles in Schedule 1 and the Apartment Design Guide (ADG). Background and proposal 1. A history of the planning controls for the site is set out in the Statement of Facts and Contentions (Exhibit 1) and the council's bundle (Exhibit 2). Briefly, in 2010, council adopted a maximum height of 9m for the entire site and a floor space ratio of 1:1 to be incorporated into the Draft Sydney Local Environmental Plan (Draft LEP). The proposed controls were based on an urban design study prepared in 2006. The NSW Department of Planning (DOP) issued a Certificate under s65 of the EPA Act subject to a condition requiring the draft LEP to be publically exhibited with a height control of 27m and 9m and a FSR of 1.5:1 for the site. The amendments were supported by a planning review report prepared for the State Property Authority (then owners of the site) by Grech Planners (Grech Report). Further s 65 certificates were issued by DOP, which retained the proposed controls. 2. The council had reviewed the Grech Report and considered the proposed controls resulted in significant negative impacts, including uncharacteristic bulk and scale, visual impact, significant overshadowing, overlooking and inadequate building separation to existing residential flat buildings. 3. On 6 March 2012, council requested that the building height controls be amended to 18m for a central portion of the site and 9m for the remainder, with a FSR of 1:1. The DOP required that the controls as exhibited remain and the LEP was made on 14 December 2012 together with the DCP that included 2-storey and 5-storey controls for the site. 4. The site was sold in December 2014 and is leased back to the NSW Government for the continued use as the Children's Court until 2017. The Concept Application was lodged on 29 September 2015. The Class 1 appeal against the deemed refusal of the application was filed on 12 April 2016. The application remains undetermined by council. 5. The Concept Application has been amended since it was lodged, including during the hearing, where leave was granted for the applicant to make further amendments. These principally incorporated the recommendations of the experts in relation to changes to the Eastern Tower to address overshadowing, which is discussed later in this judgment. Changes had also been made to the proposed terraces, which addressed the concerns of council's experts. 6. The proposal for which consent is sought is shown in the plans (Exhibit J) and described by the applicant's urban design and planning experts as: a. Retention and conservation of existing heritage listed 'Bidura House' including interiors, former ball room and front garden; ongoing use for non-residential purposes; and a conservation strategy outlining conservation requirements as part of any detailed Stage 2 development application; b. Demolition of the existing Metropolitan Remand Centre (MRC) with associated site works and tree removal; c. Excavation and construction of a single level basement car park with vehicle access provided from Ferry Lane and up to 89 spaces for residents and visitors; d. Stage 1 Building envelopes to accommodate a residential development comprising 9x2 storey (plus attic) 'terrace house' dwellings fronting Ferry Lane and Avon Street and 1x7 storey (Building A - West Tower) and 1x8 storey (Building B – East Tower) apartment buildings with a 3 storey envelope along Ferry Lane containing 73 apartments; e. Provision of communal open space with a total area of 1,978sqm, of which 1425sqm is to be private and 553sqm (Bidura Gardens) which can be publicly accessible. 1. During the hearing, the traffic experts agreed that the parking for the future commercial use of Bidura should also be accommodated within the total number of spaces proposed for the basement. There was also confusion about the exact area of open space in Bidura Gardens but the difference was not material. The evidence 1. Expert evidence on behalf of the applicant was provided by: * Mr P Davies, heritage * Mr R Dickson, urban design and solar access * Ms K Bartlett, planning and solar access * Mr K Hollyoak, traffic and parking * Mr R Best, geotechnical and groundwater * Mr M Hill, financial assessment of adaptive reuse options 1. Expert evidence on behalf of the council was provided by: * Mr I Stapleton, heritage * Ms J Pressick, urban design * Ms S Robinson, planning * Mr S King, solar access * Mr, C Hutcheson, traffic and parking * Mr G Kotze, geotechnical and groundwater 1. The experts on traffic and parking, groundwater and Mr Hill were not required for cross examination. 2. The hearing commenced with a view of the site and surrounding area. The Court heard from objectors to the proposal who were residents of Ferry Road or Avon Street. The objectors spoke on behalf of the others on different aspects of the proposal. The key issues are summarised as follows: 1. Overshadowing of the rear open space areas of the properties in Ferry Road; 2. Loss of privacy through overlooking from the future apartments in the development; 3. The unsuitability of Ferry Lane as the only access point to the development and the traffic impacts both during and post construction. There are already traffic issues, particularly from trucks using the lane, its narrow configuration and right hand bend, which will be exacerbated by the proposal. The proposal will also increase the demand for parking in the area; 4. The height and scale of the towers are out of character with the surrounding heritage conservation areas and will be visually dominant from surrounding streets and above Bidura House, which will adversely impact on its significance. The scale and stepped form of the MCR respects the area and it should be retained and adaptively reused. 5. The proposed terraces will be higher than the existing ridges of the existing terraces in Avon Street and are out of character. The proposal will impact on privacy, result in the loss of the "pocket park" and the outlook to mature trees and increase traffic in Avon Street, which is one way. 6. There will be impacts during construction and ongoing drainage issues. 1. The issues raised by the objectors generally reflect the contentions raised by council, which are discussed below. As a result of the amendments to the plans, council did not press the contention in relation to the terraces. Similarly, as a result of the joint conferencing of the traffic expert, council did not press its contention in relation to traffic. The traffic experts agree that the proposal would not result in an unreasonable increase in traffic in Ferry Lane and that its use by service vehicles is acceptable. The existing cross over in Glebe Point Road should be used only during construction but not by the development due to the high pedestrian use of the footpath. The residential and non-residential car parking likely to be generated by the development can be accommodated in the basement car-park. In the absence of expert evidence to the contrary, this and the other matters raised by the objectors, but not by council, would not be reasons to refuse the application. Proper planning approach 1. Mr Galasso SC, for the applicant, and Mr Clay SC, for the council, made different submissions on the proper planning approach to be applied to the assessment of the application. Although they initially had competing submissions, they generally agreed on the framework established by Part 4, Division 2A of the EPA Act that is set out above, including that approval of a Concept Application is not a development control plan and would not amend the DCP, and that any subsequent staged application cannot be inconsistent with the concept approval, without an approved modification application. 2. Mr Galasso and Mr Clay also agreed on the hierarchy of controls being that those in the LEP have precedence over those in the DCP and that s79C(3A)(b) requires that the provisions in the DCP be applied flexibly and "allow reasonable alternative solutions that achieve the objects of those standards". They agree that this is not inconsistent with the approach to the consideration of a DCP adopted in Zhang v Canterbury Council [2001] NSWCA 167, where Spigelman CJ at [75] establishes firstly that the Court has a wide ranging discretion but it is not at large and is not unfettered. Secondly, the provisions of a DCP are to be considered as a "fundamental element" in or a "focal point" of the decision making process. Thirdly, a provision that is directly pertinent to the application is entitled to significant weight in the decision making process but is not determinative. They also referred to the decision of the Court of Appeal in Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA226 and agreed that the Court is not entitled to take the view that a provision in a DCP is inappropriate and to apply its own standard of what is reasonable. Rather, consistent with s79C(3A)(b), the Court is to consider the DCP provision and also whether any proposed alternative solution would achieve its objectives. 3. The parties also agree that, under s79C(3A)(a), if the development complies with the standards in a DCP more onerous standards cannot be required such as if the DCP requires a setback of 4m, the Court cannot impose a more onerous standard and require a greater amount. Furthermore, under s74C(5)(b) a development control plan cannot be inconsistent or incompatible with a provision of a planning instrument. The parties agree that the five storey control in s4.2.1.1 of the DCP would be inconsistent with the 27m height standard in the LEP as a greater number of residential storeys can be achieved within this height. 4. Both Mr Galasso and Mr Clay referred to BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399, which they considered had applicability to standards in an LEP although it applies to the zoning of land. In BGP Properties McClellan CJ at [117]-[119] considers the significance of zonings and states: 117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened. 118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. 119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project. 1. In Mr Galasso's submission, the site has recent, site specific controls and there is an assumption that development that complies with these controls can occur and that a numerical control is the manifestation of the objectives for that control. Impacts, such as bulk, are impacts that may reasonably be expected from an application of the controls (see Veloshin v Randwick Council [2007] NSWLEC 428). He notes that a 27m height control occurs nowhere else in Glebe and that the desired future character for the site is for a development which is higher than other development in the area and the controls are not intended to retain the existing character of surrounding development. 2. Mr Clay submits that the B2 zoning and FSR of 1.5:1 in the LEP apply along Glebe Point Road and are not site specific. He acknowledges that the 27m height limit applies only to the site and there is an expectation that this can be achieved. However, he submits that no extra weight should be applied to the height and FSR controls due to the circumstances under which they were made and that they were not the result of an extensive public consultation process. He accepted the hierarchy of LEP and DCP controls but noted that there are a suite of controls in the LEP, including heritage and that the height and FSR controls are maximums, which can only be achieved if the impacts, such as overshadowing, are acceptable and that adverse impacts are not an inevitable outcome of the controls. Findings 1. Regardless of how the LEP controls came into being, they are the controls under which the application must be assessed. The key difference in the submissions of Mr Galasso and Mr Clay as to the proper approach relates to the application of the height and FSR standards in the LEP. In adopting the approach in BGP Properties, it is reasonable to assume that, in some form, development which is consistent with these controls will be permitted provided that the design of the project results in acceptable environmental impacts. 2. The height and FSR standards are part of a number of controls in the LEP against which the application must be assessed. The height and FSR controls are maximum controls and clearly a height of 27m is not achievable over the whole of that part of the site with a 27m maximum height limit, if compliance with the FSR control is to be maintained and the requirements of other controls, such as heritage are to be satisfied, particularly as Bidura House is within the area of the site with a maximum of 27m. 3. The Concept Application distributes gross floor area (GFA) over the site that complies with the maximum FSR control of 1.5:1. It also distributes height over that part of the site with a 27m height limit. The maximum height is achieved only by a section of the East Tower and a range of lower heights are provided to respond to the constraints of the site. 4. The key question before the Court is whether the distribution of height and FSR over the site in the Concept Application achieves the objectives of these controls and satisfies other relevant controls in the LEP, in particular the heritage requirements as well as those in SEPP 65 and the ADG, such as separation, and the DCP, such as overshadowing. Heritage Heritage significance of the Metropolitan Remand Centre 1. A Conservation Management Plan (CMP) was prepared by Graham Brooks and Associates in September 2015 which assessed the MRC to have little heritage significance. Mr Stapleton prepared an Assessment of Cultural Significance of the MRC (revised July 2012), which stated that the MRC is an item of local significance and included the following summary Statement of Significance: 5.4 Summary Statement of Significance for the former MRC The former Metropolitan Remand Centre, Glebe is of historical significance as part of the broader history of the administration of juvenile justice and child welfare in NSW, dating from the mid 1800s through to today's Children's Court of NSW, as one of a small number of remand centres built in the late 1970s to early 1980s to meet changing attitudes and legislation in the management of children in the juvenile justice system of NSW and one of a very small number of still functioning purpose-built children's court buildings. The building is an example of the work of the NSW Government Architect's Branch and is considered to be a representative example of late Brutalist architecture in NSW, displaying many of the typical characteristics of the architectural style. However, the siting and stepped form of the building has resulted in the loss of visual impact typical of Brutalist buildings, although it remains a sympathetic development within the surrounding 19th century residential precinct. The Auditorium/Recreation Hall is of aesthetic significance as a good example of a c 1980s Brutalist style interior with folded plate beam ceiling, timber detailing and skylights. The place would also hold social significance for former inmates and staff in relation to its past and current uses as a remand centre and children's court. 1. Mr Stapleton considered the MRC is of local significance largely because of historic and social significance and some aesthetic significance relating to the Entry Atrium, Auditorium/Hall and the circular stair. Mr Davies recognised that the MRC is of "modest historic significance" but it does not reach the threshold for local listing. The experts held different opinions on the legal status of the MRC as part of the heritage listing under the LEP. As Mr Stapleton considers the MRC is listed as a heritage item, its total demolition would, in his opinion, be contrary to the requirements of cl 5.10 of the LEP. Whereas, Mr Davies considers the MRC is not listed as a heritage item nor does it warrant listing and therefore its total demolition is acceptable. The experts also disagree on the contribution of the MRC to the Glebe Point Road HCA. Mr Stapleton considers the bulk and scale of the MRC contributes to the HCA whereas Mr Davies considers that its design attempts to contribute but it is not sympathetic. 2. In oral evidence, Mr Stapleton acknowledged that the MRC does not need to be retained, other than the Auditorium/Hall which has aesthetic significance as a "good example of a late Brutalist style interior". Mr Davies did not consider keeping part of a building, to be acceptable conservation practice, unless that part of the item is of exceptional significance and the retention of the whole item is not feasible, which is not the case. In his opinion: While the design of the auditorium is reasonably successful it is not outstanding and actually is perceived to be better than it is when seen in contrast to the balance of the building design which is poor. I do not accept the argument that the auditorium alone is worthy of heritage listing. It is not an element in isolation that justifies listing. Impact on Bidura House 1. The key disagreement between the heritage experts was whether the West Tower would have an adverse impact on the significance of Bidura House, particularly its setting when viewed from Glebe Point Road. During the hearing, a photomontage looking towards the site from the opposite side of Glebe Point Road (Exhibit G) was prepared by the applicant, in accordance with the Court's Practice Direction. This is similar to the earlier model/montages prepared by council that were included in the Joint Planning/Urban Design Report (Exhibit 9). The earlier montages/models prepared by the applicant and included in the Joint Report were agreed by the Urban Design and Planning Experts not to be accurate and could not be relied on. 2. The Photomontage (Exhibit G) shows that the upper levels of the proposed seven storey West Tower will be clearly visible above the ridge line of Bidura House when viewed from the opposite side of Glebe Point Road, directly in front of Bidura. Mr Stapleton considered this to be the primary view of Bidura House as it is on axis with the symmetry of the building. In his opinion, the proposal would visually dominate Bidura House and that to maintain the scale of the existing house within its setting the proposal should preferably not have a greater visual presence than the MRC. While the MCR is closer at ground level than the West Tower, the additional height of the MCR is stepped back to provide a considerable setback at the upper levels. 3. Mr Stapleton considered that, at a minimum, the proposed development should not be seen above the "silhouette" of the roof form of Bidura House or, if seen, it should be a sufficient distance to appear as a separate building and to ensure that Bidura House is read in the round. He acknowledged that the extent of impact on the setting of Bidura House would be dependent on detailed design and material selection that does not form part of the proposal. He considered that it is preferable that the new development be separated from Bidura House with an open space curtilage and that the setback of the West Tower at its lower levels was adequate. However, if it were necessary, for functional reasons, Bidura House could be connected to the new building with a link element, provided this was not higher than Bidura House. 4. Mr Davies did not consider that it was critical for the proposal not to be seen above Bidura House and that the degree of visual impact would be dependent on the detailing of the new building. He accepted that the setting and context of Bidura House would change but not necessarily be diminished or dominated by the proposal. He considered that the visual impact depicted in the photomontage would be acceptable, subject to appropriate detailing. Although, he acknowledged that to establish an acceptable setting for Bidura House, the first step would be to determine an appropriate scale relationship between the existing house and the new development and the second step would be the design, detailing and materials. Mr Davies acknowledged that the view of Bidura House from directly across Glebe Point Road was important but other views were also important, including the view from the north looking up the street, but these are dynamic views. In his opinion, the setback between Bidura House and all levels of the West Tower is adequate. The West Tower should be not be connected to Bidura House, which should be retained as a separate building with space on all sides. 5. Both experts were not aware of, and had not undertaken, any sight line analysis of views in Glebe Point Road to determine the extent of change required to the proposed envelope for it not to be visible above Bidura House or to determine the visual impact if it were further setback. Impact on Heritage Conservation Area 1. In Mr Stapleton's opinion, the stepped form and siting of the MRC and its resultant bulk and scale respond positively to the Glebe Point Road HCA and the new building will be more intrusive. Whereas Mr Davies considers that the design of the MCR had attempted to respond positively to the HCA but it is not sympathetic, particularly due to its blank walls at several levels. Mr Davies notes that the new building will be larger and will be "more present in the setting". However, both experts agree that it was not necessary to compare whether the MCR or the proposal is more or less contributory to the HCA but rather to consider the compatibility of the proposal. They agree that "a development of the scale proposed it is not possible to provide building envelopes compatible with the surrounding area, but the use of terrace forms and the proposed setbacks are addressing the issues of being compatible with the heritage conservation areas". Mr Davies stated further: If a building is to be constructed in compliance with the LEP control, it is almost impossible to achieve a building that respects the surrounding contributory buildings and character of the Glebe Point Road Heritage Conservation Area as set out in the SDCP controls. Findings 1. The Statement of Significance for the site in the CMP provides: The Bidura House group, located at 357 Glebe Point Road, Glebe, has historical significance as an identifiable part of Governor Phillip's 1790 land grant to the Church of England, and of the subsequent 1828, 1840 and 1904 subdivisions which gave rise to its current boundaries, reflecting the historical expansion of Sydney and the development of Glebe Point. Bidura House has particular historical significance as one of few remaining large houses of this period in the area, and especially in having been designed, built (c.1860) and occupied by the renowned Colonial Architect, Edmund Thomas Blacket. From 1920 the Bidura House group formed part of the State Government welfare system. The former Remand Centre, a modern concrete structure constructed behind Bidura House (c. 1980) on the site's downward slope, was a late component of this use and has little historical significance. The Bidura House group has associational significance, above all with Edmund Blacket. He purchased it from Stuart Alexander Donaldson, first Premier of NSW, and after Blacket's residency it was occupied by other people of note at the time, including Robert Fitz Stubbs, auctioneer, Frederick Perks, merchant, and Walter Fitzmaurice Burfitt, surgeon. The Remand Centre is associated primarily with the Government Architect's Office and has little associational significance. Bidura House and the Ballroom have aesthetic significance as examples, respectively, of Victorian Regency and Victorian Italianate architecture. Together with its garden setting, the Bidura House group forms an elegant, largely intact contributor to the character of the streetscape and the HCA. The Remand Centre is a restrained example of Brutalist architecture which makes little contribution to the character of the HCA. Bidura House and the Ballroom are an unusual combination of building types and styles. The Remand Centre is a minor example of Brutalist architecture, of which several more significant examples may be found in Sydney, and has little aesthetic significance. 1. I accept Mr Davies' evidence that the significance of the MRC and the Auditorium/Hall does not warrant its retention and that incorporating the Auditorium/Hall into a new development, as suggested by Mr Stapleton, would not be sound conservation practice, given its level of significance, the demolition of the rest of the building of which it is part and the constraints that this would place on future development. In response to the oral evidence of Mr Stapleton, council did not press the retention of the MRC or its Auditorium/Hall. 2. The CMP includes the following Conservation Policies for the Bidura House and its ballroom (Bidura House group): 6.2 Principal Conservation policies Policy 6.2.4 Redevelopment of rear of site Due to its relative lack of significance, the rear of the site may be redeveloped in accordance with contemporary planning controls and market expectations. To protect the significance of Bidura House group a minimum separation of 8 (eight) metres from the rear of Bidura House group shall be maintained. Policy 6.2.5 Design of Redevelopment at Rear of Site The massing of any development at the rear of the site shall be arranged on the site to respect the visual and operational integrity of the Bidura House group and take account of the Glebe Point Road HCA, the Glebe Point HCA and the heritage items in the vicinity. 6.4 Conservation of the Setting Policy 6.4.1 Visual Setting The visual setting around the Bidura House group shall be retained in any future use of the buildings or the site. Policy 6.4.2 New Structures If any new structures are required on the site, their design and siting shall be planned to maintain the visual presence of the Bidura House group. Policy 6.4.4 New Development Outside Bidura House Group New development outside the curtilage identified in Figure 4 12 shall be volumetrically modelled to the maximum permissible height of 27 metres from the scale of the Bidura House group and should be largely within the view shadow of the group. New development shall not challenge the legibility of the Bidura House group as seen from any location in Glebe Point Road. Policy 6.4.8 Within the context of the allowable floor space ratios and height controls, any new development on the site shall take note of the Glebe Point Road Heritage Conservation Area and the adjoining Glebe Point Heritage Conservation Area, and consider the prevailing character of the locality. 1. Bidura House is setback from Glebe Point Road in a landscaped setting, which reduces its visibility but there are a number of vantage points in the street from where it can be viewed. The modelling/montages of the proposal in the Joint Report undertaken by the applicant are agreed to not be accurate. It is unclear which modelling/montages Mr Davies based his initial opinion on that the visual impact of the proposal is acceptable however his opinion did not change in response to the photomontage in Exhibit G. I accept Mr Stapleton's evidence that the proposed envelope of the West Tower will result in unacceptable impacts on existing views of the Bidura House, as seen from Glebe Point Road, particularly from directly opposite on Glebe Point Road, on the axis of the House. The height, bulk and scale of the West Tower, particularly the proximity of the upper levels as well as the extent of envelope proposed to the north of Bidura, will dominate the existing building and adversely impact on its setting and its relationship to Glebe Point Road HCA. 2. The MRC, although "Brutalist" in style and arguably unsympathetic in its materials and detailing is relatively unobtrusive from Glebe Point Road behind Bidura House Group mainly due to the substantial setback of the upper levels. The existing setback between the rear verandah of Bidura and the west elevation of the MRC is 8.2 m and the stepped form results in the upper levels of the MRC having a setback of over 20 metres from the rear elevation of Bidura House. 3. The proposed West Tower provides a 10 metre setback for six storeys with the upper storey setback approximately 12.8 metres. Although, this setback complies with the numerical requirement of a minimum separation of 8 metres in the CMP Conservation Policy 6.2.4, it does not meet the other conservation policies. The arrangement of massing at the rear of the site does not adequately respect the visual and operational integrity of the Bidura House group or take account of the HCAs and the heritage items in the vicinity (Policy 6.2.5). The visual setting around Bidura House is not adequately retained (policy 6.4.1) and the design and siting of structures do not maintain the visual presence of the Bidura House (Policy 6.4.2). The proposal is not volumetrically modelled to the maximum 27m height from the scale of Bidura House nor is it largely within the view shadow of the group so that it does not challenge the legibility of the Bidura House group as seen from any location in Glebe Point Road (Policy 6.4.4). 4. Similarly, the West Tower would not meet the relevant considerations in the DCP. In particular, the objective of s3.9.5(a) of the DCP to ensure that development in the vicinity of a heritage item is designed and sited to protect the heritage significance of the item and the provision in s3.9.5(4)(d) that development in the vicinity of a heritage item is to minimise the impact on the setting of the item by retaining and respecting significant views to and from the heritage item. 5. The proposed West Tower does not provide an appropriate visual curtilage for Bidura House and will have negative impacts on the existing setting and built context of Bidura House and visually dominate the building when viewed from Glebe Point Road. While the detailed design and materials in the later stages of the development would clearly be important in ensuring the quality of the final development, it is unlikely that they would mitigate the visual impact on the setting of Bidura resulting from the height and bulk of the proposal. 6. Mr Stapleton's principle that the visual impact of the proposed development should be no greater than that of the MRC or at least should not be visible above the roof of Bidura House or be sufficiently setback, appears to provide an appropriate guide to future development as this would maintain the silhouette of Bidura House and maintain its three dimensional form and setting when viewed from Glebe Point Road. 7. There appears to have been no analysis undertaken or at least none presented to the Court that examines the principal view-points in Glebe Point Road and sight lines prepared to demonstrate an envelope that would minimise the visual impact of the proposal on Bidura House and the impacts that this may have on achieving the maximum envelope envisaged by the height control. Clearly the impact of the West Tower is a result of the separation distance and height. The further the tower is from Bidura the higher it can be without intruding into the visual curtilage and dominating the building. 8. The Concept Application is one option for distributing the height and FSR of the development over the site. The Grech Report upon which the controls were based, provided another option that proposed one building that stepped up from the scale of Bidura House, with significantly greater setback (21m) of the upper levels (levels 4-8) than that currently proposed. Undoubtedly, there are other options, but I am not satisfied that the distribution of height and FSR in the Concept Application would not have an adverse effect on the heritage significance of Bidura and therefore does not satisfy cl 5.10 of the LEP. 9. For similar reasons, the proposal would not have an acceptable impact on the heritage significance of the Glebe Point Road HCA and Glebe Point Road Special Character Area, which seek to maintain compatibility of new development with the low scale of existing development when viewed from Glebe Point Road. 10. An acceptable relationship of the proposal to the Glebe Point HCA is also difficult to achieve given the difference in planning controls, however, the stepping of the towers down to Ferry Lane and the terrace style development to Avon Street attempt to mitigate between the form of development envisaged under the LEP controls for the site and the form of development envisaged under the controls for the adjoining HCA. Planning and urban design Floor space ratio 1. Ms Robinson initially raised concerns that the retention of Bidura House is not "significant development" for the purposes of cl 4.5(6). However, the parties have agreed that this clause is not applicable as the site is one lot and conservation works to Bidura House are to be undertaken, although not detailed in the Concept Application. 2. Ms Robinson considers that the Concept Application seeks to achieve the maximum FSR based on the whole site area on only the developable part of the site, which represents about 70% of the site area. In her opinion, this results in unacceptable impacts and it may not be possible to achieve the maximum FSR for the site as the objectives are not met. 3. Mr Bartlett considered it is appropriate to use the whole site for the purpose of calculating FSR and that this results in an appropriate built form when considered against the relevant planning controls. Height, bulk and location of the Towers 1. Ms Bartlett and Mr Dickson held different opinions to Ms Robinson and Ms Pressick about the acceptability of the height, bulk and location of the East and West Towers. Their opinions in relation to the West Tower largely reflected the opinions of the heritage experts. Ms Robinson and Ms Pressick considered the West Tower would have an unacceptable visual impact when viewed from Glebe Point Road. Whereas, Ms Bartlett and Mr Dickson considered that it would not. 2. Ms Robinson and Ms Pressick considered that the height of the Towers was "anomalous" with the character of the locality and would have a similar impact to that of the adjoining Forsythe Towers, which are detracting elements. They state that: ….an attempt to scale the edges of the development to relate to the surrounding predominant character has been undertaken, however, the height of the towers that are located only metres behind the low scale sleeve are highly visible, anomalous and overbearing when viewed from locations such as the Ferry Road dwelling. Like the anomalous Forsythe Towers, the proposed East Tower and West Tower are likely to be highly visible above the Glebe Ridgeline when looking towards Glebe from the east…. 1. Ms Bartlett and Mr Dickson consider that the proposed tower heights do not take their cues from the Forsythe Towers and that the development has been modelled to respond to its context, including the lower scale development in Ferry Road and Avon Street which reflects the height controls in the LEP. Mr Dickson considers the prominence of the Towers depends on where they are viewed from, and factors such as the background, light of day and colour of the development. He accepts that the proposal will be "somewhat visible" from the surrounding public domain but that it will be viewed in the context of other multi storey residential developments in the Glebe Point Locality. 2. In oral evidence, Ms Robinson acknowledged that to achieve the maximum FSR and height for the site, the East Tower, with greater setback of levels 5-8, may be 27m but the West Tower cannot due to the impacts on Bidura House and solar access to the Ferry Road properties. In her opinion, more GFA could be distributed to the lower levels. This could be achieved by elevating the communal open space as there is no requirement for it to be at ground level and only 6% of the site needs to be deep soil, which is easily achieved, particularly with the retention of Bidura House Gardens. The elevation of the communal open space could also provide increased amenity to this area. In her opinion, the Concept Application should establish an envelope that achieves an acceptable relationship with Bidura House, solar access compliance and appropriate setbacks to 2A Forsythe Street and that this should not be left to a later development application stage. Ms Pressick agreed that the Concept Application should establish the parameters for future development of the site. 3. Mr Dickson accepted that it is feasible for there to be greater site coverage with open space elevated and towers above. He did not consider it was appropriate to have a single built form as this would result in double sided corridors and consequently units that face south. However, he acknowledged that it is a suitable form for a four to six storey development and that higher development should be in a tower form. 4. Mr Bartlett considers that other options have been looked at and it is appropriate to defer considerations such as solar access to a later stage as often there are changes between the Concept Application and a later stage development application resulting from the Design Excellence Process. Building separation 1. The key dispute of the experts related to the building separation between levels 5-8 and 2A Forsythe Street. A setback of 6m from the common boundary is proposed for all levels of the East Tower and no windows to habitable rooms are proposed for Levels 5-8. Ms Robinson and Ms Pressick accept that this would achieve compliance with ADG 3F-1 for visual privacy but not satisfy ADG 2F provisions in relation to urban form, amenity within apartments and open space areas, outlook, desired future character, massing and spaces between buildings. They considered that the option of habitable rooms with windows to this façade should be included in the Concept Application by providing a 3m increase in the setback of Levels 5-8. 2. Mr Dickson considers the separation is reasonable as the overall distance to the building at 2A Forsyth Street is between 12-16m and only a 12m separation is required between habitable to non-habitable rooms under the ADG. It is acceptable to have blank walls as the façade is orientated to the north west and the desirable views and outlook is to the north east. Tree retention 1. Ms Robinson and Ms Pressick note that the large Camphor Laurel tree in the north east part of the site is a weed species but consider it should be retained as it provides screening to the residential flat building at 2A Forsyth Street and would assist in breaking up the bulk of the East Tower as well as provide privacy to the communal area, particularly as there is limited opportunity for large canopy trees in the development to break up the bulk of the building. 2. Ms Bartlett states that the Camphor Laurel tree is assessed as being of low significance and a weed. A detailed landscape plan will be provided with the later the second stage development application. Findings 1. The planning controls envisage that a tower form of development can occur on the site, subject to acceptable impacts. Such a form of development will be visible from surrounding areas and if the Forsythe Towers are considered to be "anomalous" then the proposed towers will also be anomalous but this is what is envisaged by the LEP, which in permitting a maximum height of 27m, identifies that the site is undergoing change and the development on the site will be different to the predominant form of development in the surrounding area. It must be assumed that the numerical height controls in the Height Map and FSR Map are the embodiment of the objectives of these controls. However, this does not mean that the distribution of the height, bulk and location of the towers on the site should not be considered against the objectives of the controls and within the context of the other planning controls, in particular the relationship of the towers and their potential impacts on surrounding development. 2. As discussed above, the location of the West Tower adversely impacts on the heritage significance of Bidura House and it also impacts on solar access to the open space of the properties in Ferry Street, which is discussed below. The separation of levels 5-8 in the East Tower limits the opportunity to provide habitable rooms to these levels that are orientated more to the north than to the west. Notably the Grech Report, upon which the controls are based, proposed an 18m separation to the neighbouring residential tower. The retention of the Camphor Laurel tree, although a weed, assists in screening 2A Forsyth Street and the development. It should be retained until alternative canopy planting is provided. The strategic positioning of canopy trees within the development could assist in breaking up the mass of the development and softening its visual impact when viewed from surrounding development and distant views. 3. As stated above, the Concept Application is one option for distributing the height and FSR of the development over the site. The Grech Report provided another option and the experts have discussed an option of redistributing the floor space from the tower forms to provide greater site coverage and elevating the communal open space. Undoubtedly, there are other options. The proposed tower forms in the Concept Application would maximise views and amenity to the proposed apartments. However, the Concept Application has not adequately addressed the impacts on the adjoining context to the extent that it would be consistent with objective (b) of the height control in cl 4.3 "to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas", such that it would warrant approval. Solar access 1. In their Joint Report, Ms Bartlett, Mr Dickson and Mr King agreed that the Compliance with the overshadowing controls in s4.2.3.1 of the DCP requires that adjacent dwellings receive: (a) a minimum of 2 hours direct sunlight between 9am and 3pm on 21 June to 50% of the required minimum area of private open space (this equates to 8sqm measured at ground level); and (b) a minimum of 2 hours direct sunlight between 9am and 3pm on 21 June to 1sqm of living room windows; and (c) where a dwelling currently receives less than 2 hours direct sunlight between 9am and 3pm on 21 June to 1sqm of living room windows and 50% of the required minimum area of private open space (measured at ground level), new development must not create any additional overshadowing. 1. The proposed building envelopes for the East and West Towers did not comply with these requirements. Additional "solar massing studies" were prepared by the applicant's architect, which identifies modifications to the envelopes to achieve greater compliance with the control. 2. The experts agreed that the proposed changes to the East Tower would enable solar compliance for 19, 23 and 25 Ferry Road and that these changes are reasonable. During the hearing the applicant was granted leave to rely on amended plans, which included these modifications to the East Tower. 3. The modifications to the West Tower in the solar massing study would achieve compliance or "near compliance" (1.45 hours of sunlight to 8sqm or no significant additional overshadowing) to 3, 5, 7, 13 and 29 Ferry Road. However, the experts held different opinions about whether these modifications were reasonable and they have not been incorporated into amended plans. 4. This disagreement centred on the measurement of solar access or whether partial compliance is reasonable. Ms Bartlett considered that it in dense urban areas sunlight is harder to protect and many terraces have relatively small area of open space with a variety of shapes and sizes. In her opinion, it is appropriate that solar compliance is at 450mm above ground level where there would be "sunlight falling on a seated resident" in accordance with the principles in Benevolent Society v Waverley Council [2010] NSWLEC 1082. Under this assessment methodology 3 and 7 Ferry Road both achieve a minimum of 2 hours to 8sqm. If assessed at ground level these properties and 5 Ferry Road have particular characteristics which make retention of solar access difficult but on merit would still achieve adequate solar access. In her opinion, the modifications to the West Tower are substantial, result in only marginal improvements to the solar access of the affected properties and are not reasonable given that the proposal complies with the FSR and height controls. Mr Dickson agreed with Ms Bartlett. 5. Mr King's stated that solar access to 17 out of the 21 properties in Ferry Road would be reduced by the proposal. Section 4.2.3.1 of the DCP provides minimum criteria that, if satisfied, the development would achieve solar access that is reasonable. Even if the modifications are made there would be a reduction in solar access that would impact on the amenity currently enjoyed by these properties. 6. The experts agreed that the solar access impact to the Ferry Road properties with the modifications to the East Tower (but not the West Tower) would be as follows: Now receiving more than 2 hours not after the development 3 Ferry Road reduced from 3.5 hours to 1 hour 7 Ferry Road reduced from 2.75 hours to 1 hour Now receiving less than two hours, further reduced after the development 5 Ferry Road loses all sun from just after 12pm (already has less than 8sqm) 13 Ferry Road a very small reduction in area between 11.45 -12.30 29 Ferry Street additional reduction in area from 2pm 1. Mr King recognised that 13 and 29 Ferry Street already receive limited solar access and that the additional impact is marginal. In Mr King's opinion, the measurement of solar access at ground level means that there would be more solar access at 450mm above ground, which would have flow on effects of greater solar access throughout the year. If measured at 450mm above ground, there is effectively less solar access in the private open space. Findings 1. The amended proposal does not comply with the numerical requirements of s4.2.3.1, if solar access is measured at ground level. Even if the West Tower were modified there would only be "near compliance". Under s79C(3A)(b), the Court is to consider the DCP provision and also whether any proposed alternative solution would achieve its objectives. The objective of s4.2.3.1 is: (a) Ensure that residential amenity is enhanced with landscaping, private and common open space, sun access, ventilation and acoustic privacy. 1. The planning principal in the Benevolent Society provides additional guidance as to whether this objective is achieved at [144] it states: Where guidelines dealing with the hours of sunlight on a window or open space leave open the question what proportion of the window or open space should be in sunlight, and whether the sunlight should be measured at floor, table or a standing person's eye level, assessment of the adequacy of solar access should be undertaken with the following principles in mind, where relevant: ● The ease with which sunlight access can be protected is inversely proportional to the density of development. At low densities, there is a reasonable expectation that a dwelling and some of its open space will retain its existing sunlight. (However, even at low densities there are sites and buildings that are highly vulnerable to being overshadowed.) At higher densities sunlight is harder to protect and the claim to retain it is not as strong. ● The amount of sunlight lost should be taken into account, as well as the amount of sunlight retained. ● Overshadowing arising out of poor design is not acceptable, even if it satisfies numerical guidelines. The poor quality of a proposal's design may be demonstrated by a more sensitive design that achieves the same amenity without substantial additional cost, while reducing the impact on neighbours. ……. ● For private open space to be assessed as receiving adequate sunlight, regard should be had of the size of the open space and the amount of it receiving sunlight. Self-evidently, the smaller the open space, the greater the proportion of it requiring sunlight for it to have adequate solar amenity. A useable strip adjoining the living area in sunlight usually provides better solar amenity, depending on the size of the space. The amount of sunlight on private open space should ordinarily be measured at ground level but regard should be had to the size of the space as, in a smaller private open space, sunlight falling on seated residents may be adequate. ……. ● In areas undergoing change, the impact on what is likely to be built on adjoining sites should be considered as well as the existing development. 1. In applying the principals in the Benevolent Society to the Concept Application, the location of the north facing open space of the low density properties directly to the south of the high density development proposed for the site means that these properties are vulnerable to being overshadowed. However, as discussed above, the FSR and height permissible on the site are maximums and their achievement is dependent upon acceptable impacts. The purpose of the Concept Application is to determine the distribution of the height and FSR on the site and this is to be considered within the context of the other relevant controls. 2. Even if the solar access complies with the minimum control in s4.2.3.1 of the DCP there will be a material reduction in the amenity of a number of properties in Ferry Road due to the loss of solar access compared to the amount retained. 3. A different distribution of FSR and height over the site may enable greater compliance with the minimum control in s4.2.3.1 to be achieved. The reduction in FSR from the West Tower could potentially be relocated to other less sensitive parts of the site such as the communal open space, as suggested by Ms Robinson and discussed above. Notably the distribution of Height and FSR in the Grech Report, which formed the basis of the controls, envisaged that the potential extent of overshadowing up to 12 noon would not go past the garages of the Ferry Road properties which "reflects an appropriate objective that existing solar access to surrounding residential properties should not be unacceptably affected….It is recognised that planning considerations at the detailed DA stage will need to ensure that this principle is adhered to, and that further modulation of building height and form may be required". 4. Section 4.2.3.1 of the DCP provides that solar access be to "a minimum of 50% of the required minimum area of open space". The experts have agreed that this is 8sqm. The open space of the dwellings is larger than this and already receives a degree of overshadowing or is occupied by outbuildings. Solar access to the remaining area, particularly where this adjoins living areas provides considerable amenity. There is no justification to measure the solar access at 450mm rather than at ground level as this will effectively reduce the solar access throughout the year to the remaining area of open space. It is not adequate, given the overall size of the open space, to reduce the amount of solar access currently received to the extent that it would only provide "sunlight falling on seated residents". 5. The site is an "area undergoing change" but the adjoining area is not and the open space areas of the properties on Ferry Road are unlikely to be developed and solar access will continue to provide amenity benefits to the occupants of these properties. 6. For these reasons, the Concept Application does not meet the objectives of s s4.2.3.1 of the DCP as residential amenity to the Ferry Road properties will not be enhanced and the minimum amount of solar access to some properties will not be provided. Conclusion 1. For the above reasons, the distribution of height and FSR in the Concept Application would have an adverse effect on the heritage significance of Bidura House, impacts on solar access to the open space of the properties in Ferry Road and does not provide adequate separation to the residential flat building at 2A Forsythe Street. Consequently, the Concept Application does not satisfy the heritage requirements in cl 5.10 or objective (b) of the height control in cl 4.3 of the LEP, or the requirements for solar access in s4.2.3.1 of the DCP and building separation in 2F of the AGD. The appeal is therefore dismissed and the Concept Application refused. ORDERS 1. The appeal is dismissed. 2. The Staged Development Application (D/2015/1398) which sets out the concept proposal for the conservation of a heritage item for non-residential use; demolition of the existing Metropolitan Remand Centre; building envelopes for residential use with basement parking; and associated site works at 357 Glebe Point Road, Glebe, is refused. 3. The exhibits, except Exhibits 1 and A, are returned Annelise Tuor 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: 10 May 2018