Land and Environment Court New South Wales Medium Neutral Citation: Surry Suplex Pty Ltd v Council of the City of Sydney No. 2 [2016] NSWLEC 1601 Hearing dates: 17 – 18 November 2016 Date of orders: 16 December 2016 Decision date: 16 December 2016 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is upheld. 2. Development Application No. D/2015/1693 for the demolition of existing structures and construction of a 6 storey building containing 39 boarding house rooms, two ground floor retail tenancies and bicycle parking at 202-210 Elizabeth Street, Surry Hills, is approved, subject to the conditions of consent at Annexure A. 3. The exhibits, other than exhibits 1, A, B and G, are returned. Catchwords: DEVELOPMENT APPLICATION: boarding house; floor to floor height of the retail tenancy at ground floor; impact of the proposal on the heritage significance of the heritage item adjacent; height of the street wall. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Trinvass Pty Ltd and Anor v Council of the City of Sydney [2015] NSWLEC 151 Surry Suplex Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1549 Category: Principal judgment Parties: Surry Suplex Pty Ltd (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: Mr A. Pickles SC (Applicant) Dr S. Berveling barrister (Respondent) Solicitors: Marc Jaku, Jaku Legal (Applicant) Kirsten Morrin, Council of the City of Sydney (Respondent) File Number(s): 2016/176706 Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. D/2015/1693 for the demolition of existing structures and construction of a 6 storey building containing 42 boarding house rooms, two ground floor retail tenancies and bicycle parking (the proposal) at 202-210 Elizabeth Street, Surry Hills (the site), by the Council of the City of Sydney (the Council). 2. The conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) was vacated by the Court on 26 August 2016 and the applicant was granted leave to rely on an amended proposal on 16 September 2016. The applicant was granted leave at the commencement of the hearing to rely on a further amended proposal (Revision R, exhibit A). The applicant tendered a montage of an alternative street elevation in response to expert evidence (exhibit G). Issues 1. The issues that remain in contention following the tender of exhibits A and G can be summarised as: * Whether the floor to floor height of the retail component on the ground floor should be 4.5m instead of 3.45m; and * Whether the street wall of the proposal should be four storeys instead of five storeys to accommodate an increased floor to floor height on the ground floor and to provide an appropriate transition between the height of the façade of the heritage item adjacent and the proposal. The site and its context 1. The site is on the eastern side of Elizabeth Street, Surry Hills, on the block bounded by Campbell Street to the north and Blackburn Street to the south. 2. There is a three storey hotel to the north of the site on the corner of Campbell Street and Elizabeth Street with decorative tower element atop the splayed corner to the intersection. 3. There is a three storey building to south of the site. 4. There is a seven storey mixed use development currently under construction on the block to the south of the site, at 216-228A Elizabeth Street, Surry Hills, which was approved by the Court (Trinvass Pty Ltd and Anor v Council of the City of Sydney [2015] NSWLEC 151). The commercial tenancy fronting Elizabeth Street has a floor to floor height of 3.57m (dwg 17 rev H, tab 6, exhibit D). Background and the proposal 1. The proposal is to construct a six storey building, with the following accommodation: * Ground Floor: two retail tenancies, service areas, common room for the boarding house with an outdoor area; * First Floor – Fourth Floor: 9 boarding house units on each level; * Fifth Floor: 5 boarding house units, common area with an outdoor area. Planning framework 1. The application is made pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). Clauses 29 and 30 of SEPP ARH include the following: 29 Standards that cannot be used to refuse consent (1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than: (c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register—the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus: (ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1. 30 Standards for boarding houses (1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following: (a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided, (h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms. 1. The site is zoned B4 Mixed Use and the proposal is permissible with consent. Regard must be had to the objectives of the B4 Mixed Use zone, which are: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To ensure uses support the viability of centres. 1. Clause 6.21 of LEP 2012 'Design excellence' relevantly includes the following: (1) The objective of this clause is to deliver the highest standard of architectural, urban and landscape design. (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, (d) how the proposed development addresses the following matters: (iii) any heritage issues and streetscape constraints, (v) the bulk, massing and modulation of buildings, (vi) street frontage heights, (x) the impact on, and any proposed improvements to, the public domain, (xii) achieving appropriate interfaces at ground level between the building and the public domain. 1. The proposal complies with the height of buildings development standard of 18m (Height of Buildings Map Sheet HOB_015 LEP 2012) for the site and the floor space ratio (FSR) development standard of 3:1 (Floor Space Ratio Map Sheet FSR _015 LEP 2012) plus the 20% additional floor space permitted pursuant to cl 29(1)(c)(ii) of SEPP ARH. 2. The adjacent hotel to the north of the site on the corner of Campbell and Elizabeth Streets is a heritage item (Schedule 5 LEP 2012 Item 531). 3. Sydney Development Control Plan 2012 (DCP 2012) relevantly includes the following objectives and controls: 3.2.2 Addressing the street and public domain A person's experience of the city will be formed by the public domain as well as private developments which adjoin the public domain. It is important that development adjacent to the public domain be attractive, comfortable, safe, functional and accessible for all. The public domain and pedestrian environment should be characterised by excellence in design, high quality materials and well integrated public art. Objectives (a) Ensure that development contributes to the activity, safety, amenity and quality of streets and the public domain. (b) Present appropriate frontages to adjacent streets and public domain in terms of scale, finishes and architectural character. (c) Provide legible and accessible entries from the street and the public domain. (d) Reinforce street edge conditions that significantly contribute to the characteristics of a heritage conservation area. (e) Reinforce Central Sydney's strong definition of streets and the public domain aligned with property boundaries. (f) Ensure that in areas outside of Central Sydney new development relates to neighbouring buildings that define the street and public domain. (g) Minimise and ameliorate the effect of blank walls (with no windows or entrances) at the ground level. Provisions (1) Buildings are to be designed to positively address the street. (2) Buildings are to be designed to maximise the number of entries, visible internal uses at ground level, and include high quality finishes and public art to enhance the public domain. (3) Development that exposes the blank side of an adjoining building or has a party wall to the public domain is to be designed with a visually interesting treatment of high quality design applied to that wall. (4) Ground floor tenancies and building entry lobbies on sites not flood affected are to: (a) have entries at the same level as the adjacent footpath or public domain; (b) have finished floor levels between 0-1.0m above or below the adjacent footpath or public domain entry; (c) provide opportunities for direct surveillance of the adjacent street or public domain at maximum intervals of 6m; and (d) be elevated up to 1.0m above ground level for privacy for ground floor residential uses. 3.2.3 Active frontages A diverse range of activities should be provided at street level to reinforce the vitality and liveliness of the public domain. Active frontages to streets are encouraged so activities within buildings can positively contribute to the public domain. Such uses include retail, customer service areas, cafes and restaurants, and other uses that involve pedestrian interest and interaction. Outdoor dining areas may also contribute to active street frontages in appropriate circumstances. A well designed street frontage is important for pedestrian amenity and includes attractive building entries, window displays, display cases, artworks, well detailed architecture, facade modulation, clear glazed windows, and recessed visually permeable security screens. Objectives (a) Ensure ground floor frontages are pedestrian oriented and of high design quality to add vitality to streets. (b) Provide fine grain tenancy frontages at ground level to street frontages. (c) Provide continuity of ground floor shops along streets and lanes within Central Sydney and other identified locations. (d) Allow for active frontages in other non-identified locations to contribute to the amenity of the streetscape. (e) Encourage frequent building entries that face and open towards the street. 3.9 Heritage 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. 3.9.5 Heritage items Development in the vicinity of a heritage item can have an impact upon the heritage significance of the item. The determination of the setting of a heritage item should consider the historical property boundaries, significant vegetation and landscaping, archaeological features, and significant veiws [sic] to and from the property. Objective (a) Ensure that development in the vicinity of heritage items is designed and sited to protect the heritage significance of the item. Provisions (1) Development affecting a heritage item is to: (a) minimise the extent of change to significant fabric, elements or spaces; (c) enable the interpretation of each of the significant values of the item through the treatment of the item's fabric, spaces and setting; (4) Development in the vicinity of a heritage item is to minimise the impact on the setting of the item by: (a) providing an adequate area around the building to allow interpretation of the heritage item; (b) retaining original or significant landscaping (including plantings with direct links or association with the heritage item); (c) protecting, where possible and allowing the interpretation of archaeological features; and (d) Retaining and respecting significant views to and from the heritage item 4.2.1.1 height in storeys and street frontage height in storeys Objective (a) ensure the height in storeys and street frontage height in storeys reinforces the existing or future neighbourhood character 4.2.1.2 Floor to ceiling Objective (a) Promote daylight access into building interiors and contribute to the flexible use of buildings. Provisions (1) Buildings with a commercial or retail use are to have a minimum floor to floor height of (a) 4.5m on the ground floor. 1. The site is identified as 'active frontages' (Active frontages map sheet 015 DCP 2012), 5 storeys (Height in storeys map sheet 015 DCP 2012). The site is not identified as having a building street frontage height in storeys (Building street frontage height in storeys map sheet 015 DCP 2012). 2. The Locality statement for 'City Edge' of Surry Hills at 2.11 of DCP 2012 includes the following: The locality contains the primarily commercial area between Oxford and Campbell Streets, and is bounded by Wentworth Avenue, Elizabeth and Foveaux Streets in the south. The area is to provide a transition between taller, large scale commercial buildings in Central Sydney and lower scale, finer grain mixed uses of Surry Hills. There area [sic] also clusters of multi-storey face brickwork warehouse buildings built in the early 20th century. New development is to respond to the scale and proportion of the area's heritage warehouses, utilising similar materials including brick and masonry. Employment and business uses are encouraged with retail uses consolidated along the Wentworth Avenue and around the edges of Harmony Park. Principles (a) Development must achieve and satisfy the outcomes expressed in the character statement and supporting principles. Expert evidence 1. The applicant relied on the expert evidence of Mr Wil Nino (planning), Mr Geoff Baker (urban design) and Mr James Phillips (heritage). The Council relied on the expert evidence of Ms Peggy Wong (planning), Mr Tony Smith (urban design) and Mr Hui Wang (heritage). Consideration Floor to floor height 1. The Council contends that the retail use on the ground floor of the proposal should have a minimum floor to floor height of 4.5m (4.2.1.2(1)(a) of DCP 2012). The ground floor retail tenancies of the proposal have a floor to floor height of 3.45m. 2. In Mr Smith's view, the neighbourhood character of the site has been determined by the scale of the early warehouses and commercial buildings, which have generous proportions. On the site view, he pointed out a number of commercial and retail spaces at ground level that have high ceilings, particularly along Wentworth Avenue. 3. In Mr Smith's opinion, the street wall of the proposal should be four storeys high, to accommodate a generous floor to ceiling height at ground floor and to ensure that the masonry façade does not extend more than 1m above the neighbouring heritage item. This will result in a street wall with more vertical proportions and provide an appropriate infill building next to the heritage item. Mr Wang concurred with this view. 4. Mr Smith is content that the building envelope of the proposal and the materials are acceptable and he is not concerned that the proposal is 6 storeys high, notwithstanding the DCP 2012 control of 5 storeys. In his opinion, a proposal with a four storey street wall and two additional storeys setback from the street wall would be a better outcome than the proposal. Figure 1 Indicative sketch by Mr Smith showing 4 storey street wall and a higher floor to floor height on the ground floor. 1. Mr Pickles SC submits that the objective for floor to ceiling heights concerns daylight access only and the proposed retail areas will receive adequate daylight, as they are relatively small commercial tenancies (approx. 59sqm and 26sqm) and not David Jones. 2. On the site view, Mr Baker pointed out a number of commercial and retail spaces at ground level that have lower ceilings. 3. I prefer and accept Mr Smith's evidence in relation to the scale and generous proportions of the older buildings in the area, particularly at ground level, which provide the distinctly urban character and a cue to the commercial uses of Wentworth Avenue and Elizabeth Street. I accept that some of the tenancies along Wentworth Avenue and Elizabeth Street have lower ceiling heights on the ground floor; however the dominant scale of the ground level along the main streets is generous and this reads strongly. The small tenancies in the side laneways with low ceilings bear no relationship to what the appropriate proportions of a ground floor tenancy in Elizabeth Street should be. 4. In Mr Baker's view, the height of the street wall shown in the proposal is appropriate and if the street wall was reduced to four storeys and the upper two floors are setback from the street wall, the upper two floors will be too dominant. 5. I accept the Council's experts' opinion that the street wall should be four storeys to accommodate a generous floor to ceiling height at ground level and to ensure that the height and proportions of the masonry façade of the proposal are appropriately sympathetic and complementary to the character established by the adjoining heritage item. I accept that the additional two storeys of the proposal setback from the street wall in anthracite metal cladding will be visible and will reflect the strategic planning goals embodied in the range of height of buildings development controls along this portion of Elizabeth Street. 6. I accept the agreement of all the experts that the detailing and colouring of elements shown in exhibit G is preferable to the proposal. I accept the agreement of all the experts that the solid balustrades to balconies on the street elevation in exhibit G are preferable to the proposal. I accept Mr Phillips evidence that the white surrounds to the windows shown in exhibit G should not project beyond the face of the masonry façade more than 350mm. 7. I accept Mr Smith and Mr Phillips agreement that the cornice on the heritage item that returns along the southern façade of the hotel can be terminated against the western façade of the new development. A condition is to be imposed on the consent requiring the appropriate treatment of the cornice of the hotel. Findings Contravention of a development standard in SEPP ARH 1. The proposal does not include any motorcycle parking spaces. The Council does not press a contention in relation to the provision of motorcycle parking spaces. The applicant provided a written request for variation of this standard pursuant to cl 4.6 of LEP 2012 (exhibit D, tab 1). 2. In order for development consent to be granted for a development that contravenes a development standard, I must be satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2012) and that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2012) and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2012). 3. The applicant's written request raises the following justifications in summary for the contravention of the standard: * Superior proximity to public transport as the site is a short walk from Central Railway Station; * Increased provision for bicycle parking as 22 bicycle parking spaces are provided when 8 are required; * No negative environmental planning impacts; * Compliance with the objectives of SEPP ARH; * Improved streetscape activation; * Orderly and economic use and development of land; * Compliance with zone objectives. 1. I am satisfied that the proposal is consistent with the relevant aims of SEPP ARH and the objectives for development within the zone and that the applicant's written request has adequately addressed that compliance with the development standard is unnecessary in the circumstances and that there are sufficient environmental planning grounds to justify contravening the development standard. Floor to Floor height on the ground floor and street wall height 1. I prefer the Council's experts' view that the four storey street wall will provide an appropriately proportioned and decorous infill building adjacent to the heritage item and it enables the floor to floor height of the ground floor retail tenancies to be increased to at least 3.95m. I accept Mr Smith's opinion that the six storeys of the proposal are acceptable and consequently the upper two storeys are to be setback from the street wall to maintain the footprint shown for the fifth floor of the proposal (drawing A.10, exhibit A). 2. The applicant is to amend the proposal to provide the maximum height for the ground floor retail tenancies whilst complying with the undisputed maximum building height for the site at the lowest point of the site which is RL30.06; a four storey street wall consistent with Mr Smith's indicative sketch and the detailing and colouring shown in exhibit G; and two upper storeys setback from the street wall. 46-48 Foveaux Street Surry Hills boarding house development 1. The applicant submits that development consent granted by the Council for a boarding house in Foveaux Street, Surry Hills (tabs 3 and 4, exhibit D) which includes a ground floor retail tenancy with a floor to floor height of 3.5m is relevant to this appeal. I accept Mr Smith's evidence that Foveaux Street is a different context to the site and I have given no weight in my consideration of this matter to the consent granted by Council for the Foveaux Street boarding house. Conclusion 1. I am satisfied that a six storey building with a four storey street wall consistent with Mr Smith's indicative sketch and exhibit G, and an increased floor to floor height on the ground floor, will achieve a development with appropriate bulk, massing and modulation that exhibits design excellence and will be an appropriate infill building which reinforces the existing neighbourhood character. Directions 1. The directions handed down on 22 November 2016 (Surry Suplex Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1549 [37]) were as follows: The applicant is to provide amended plans as follows: Ground floor: retail tenancies at RL11.60 (Retail 2 is to have a lower floor level if feasible), other areas RLs as shown on drawing A.6; First floor: RL 15.55 layout as shown on drawing A.7; Second floor: RL 18.45 layout as shown on drawing A.8; Third floor: RL 21.35 layout as shown on drawing A.8; Fourth floor: RL 24.25 layout as shown for fifth floor plan A.10; Fifth floor: RL 27.15 layout as for fourth floor below, without balconies and outdoor area and a sixth unit instead of the common area. Maximum height RL30.05. Parapet height of the masonry street wall is to be between RL 25.15 and RL 25.66. Street elevation detailing consistent with Mr Smith's indicative sketch and exhibit G. Sun control to western windows to be shown on the architectural drawings (consistent with condition 3(e)) and operable windows/doors are to be shown in rooms opening onto balconies, so that it is possible to have the external doors to the room locked with an open window. The awning height of the proposal should ideally be a small step down from the awning of the hotel to reflect the fall of the footpath to the south. An updated BASIX certificate. New revision numbers and dates to architectural plans. The applicant is to file and serve the amended plans no later than 6 December 2016 and the respondent is to file conditions of consent consistent with this judgment no later than 9 December 2016. A pdf of architectural plans is to be provided to the Court. Liberty to restore on two days' notice. Orders will be made in chambers. 1. The applicant filed the amended architectural drawings on 6 December 2016 and the respondent filed the amended conditions of consent on 14 December 2016. Contravention of a development standard in LEP 2012 1. The directions (Surry Suplex Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1549 [37]) required the building to be raised in order to maximise the floor to ceiling height within the retail tenancies on the ground floor, so that the roof slab of the proposal was at the maximum building height development standard for the site at the lowest point on the site. The experts agreed that the height of buildings development standard over the lowest point of existing ground level is RL30.06. The applicant was directed to make the top of the roof slab of the proposal RL30.05, which results in the top of the roof slab being below the height of buildings development standard of 18m at the lowest point on the site. 2. Consequently, the lift overrun, which maintains the same height above the roof in the amended proposal as it did in the proposal (exhibit A), is at RL30.49. Existing ground level in the approximate position of the lift is RL12.06 (site survey, exhibit A). The lift overrun exceeds the height of buildings development standard of 18m by 430mm. 3. The roof ridge in the approximate centre of the building is at RL30.18. Existing ground level beneath the roof ridge ranges between RL12.03 and 12.26 (site survey, exhibit A). The ridge of the roof exceeds the height of buildings development standard of 18m by 150mm. 4. The applicant has provided a cl 4.6 of LEP 2012 request for a variation of the height of buildings development standard. 5. I am satisfied that it is reasonable to permit a degree of flexibility in applying the 18m height of buildings development standard to allow the lift overrun and the roof ridge to exceed the height of buildings development standard, as they will not be visible from the street and the exceedance is very minor. Importantly, the amended proposal creates a decorous and suitably deferential relationship with the neighbouring heritage item and the parapet height at the street wall and the overall height of the proposal are appropriate in this context. 6. I am satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the and that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances and that there are sufficient environmental planning grounds to justify contravening the development standard Orders 1. The appeal is upheld. 2. Development Application No. D/2015/1693 for the demolition of existing structures and construction of a 6 storey building containing 39 boarding house rooms, two ground floor retail tenancies and bicycle parking, at 202-210 Elizabeth Street, Surry Hills, is approved, subject to the conditions of consent at Annexure A. 3. The exhibits, other than exhibits 1, A, B and G, are returned. ____________ Susan O'Neill Commissioner of the Court 176706.16 - Annexure A - Conditions of Consent (189 KB, pdf) ********** 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: 16 December 2016