Australia: Design excellence: When near enough is not good enough

Last Updated: 8 August 2019
Article by Peter Holt and Blake Dyer
Most Read Contributor in Australia, July 2019

This article looks at the recent decision of the Land and Environment Court of New South Wales in Landmark Group Australia Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1338 (Landmark) and what is required to achieve design excellence.

A requirement for design excellence

Since 20001 the City of Sydney has had requirements in it local environmental plan (LEP) which seek to achieve design excellence in certain buildings 2.

The provisions provide that a building that demonstrates design excellence, and is the winner of a competitive design process, may have a bonus of up to 10 per cent of additional height or floor space to that which would otherwise apply to the site.

One way of achieving design excellence is through the completion of a mpetitive design process which follows the City of Sydney Competitive Design Policy 3.

The typical process is that the applicant is required to seek and obtain a concept development consent setting out the building envelope as part of a staged development. Once the envelope has been established the development is subject to an architectural design competition.

Architectural design competitions

There are two types of architectural design competitions, an 'open' competition, where the competition is publically notified and any qualified person can participate, or an 'invited' competition, where the developer invites at least five competitors to participate in the competition.

In either an 'open' or an 'invited' architectural competition the competition entries are judged by a jury of between four and six members. Half the members of the jury are chosen by the council, the other half are nominated by the developer. The jury's task is to review the submitted designs and declare a winner.

Design alternatives on a competitive basis

The alternative to an architectural design competition is the preparation of design alternatives on a competitive basis.

Under this process, the developer invites a minimum of three architectural firms to respond to a competitive design process brief. A selection panel, chosen by the developer, ranks the submissions and selects a winner.

The council nominates an independent observer to oversee the process.

Once the competitive design alternatives have been prepared and considered, the applicant is required to submit a Competitive Design Alternative Report prior to the submission of the relevant Stage 2 development application.

The Council then advises the applicant whether it endorses the process and outcome and whether it fulfills the requirements of the process.

The winner of the process is then the responsible architect for the preparation and design of the development application.

In Landmark, the developer elected to follow the design alternatives process.

However in this case the selection panel comprised two persons nominated by the developer and two persons nominated by Council.

In Landmark, the elements of the winning architectural design were then incorporated into the concept development consent which then became the basis of a detailed development application for the erection of the building.

Landmark Group Australia Pty Ltd v Council of the City of Sydney

In Landmark, the applicant had the benefit of a concept development consent for a building envelope for three buildings on the site, mostly comprising residential with some commercial at ground level on Botany Road, Waterloo (Concept DA).

Following the approval of the Concept DA there was a competitive design alternatives process where four architectural firms participated and submitted design alternatives on a competitive basis to a selection panel.

The panel resolved that a design by one of the firms, Cottee Parker JPRA, best demonstrated the ability to achieve design excellence.

A Competitive Design Alternatives Report was prepared that outlined the features the panel considered fundamental to the winning design's integrity as well as elements that needed to be resolved in detailed design and prior to submission of the Design DA.

Those requirements were incorporated into the Concept DA.

Landmark subsequently lodged a development application for the detailed design (Design DA).

As part of the Design DA Landmark sought a floor space ratio bonus of 10 per cent, relying on the fact that the building design had been through the competitive design process.

As part of that process Landmark also lodged an application to modify the Concept DA to remove or amend conditions that the Design DA did not comply with.

No design excellence

The Commissioner found that the Design DA did not display design excellence for the following reasons:

  • the Design DA sought to maximise or exceed core envelope controls relating to height and floor space in the Concept DA, rather than recognising these constraints may mean that the approved concept building envelopes could not be filled
  • in seeking to maximise floor space to take advantage of the bonus, the Design DA resulted in certain non-compliances with the requirements relating to solar access and natural cross ventilation in the Apartment Design Guide (ADG) and a number of other amenity issues relating to privacy
  • some of the other amenity issues were a direct result of the Design DA not reflecting key features of the Concept DA
  • the Design DA did not comply with certain conditions of the Concept DA and sought to have them amended so that it did not have to comply with those requirements.

Ultimately, the Commissioner did not accept that a development can achieve design excellence where two of the minimum ADG requirements designed to achieve amenity for future residents, namely solar access and natural cross ventilation, are not achieved. The Commissioner noted that "near enough is not good enough" when design excellence is the required outcome.

Lessons from the decision

When it comes to a requirement for design excellence, near enough is not good enough.

Any Design DA (which is a result of the competitive design process) should have regard to the essential elements of the winning design and any matters that the panel says should be addressed need to be addressed in the Design DA. It needs to be a result of the process.

Also, here the failure to achieve design excellence was fatal to the appeal, if design excellence is not achieved, then that in and of itself is a pre-condition to the grant of consent. In addition, there is also no entitlement to the bonus 10 per cent of floor space ratio.

As a result, consent cannot be granted as there was no request under clause 4.6 of the LEP to allow the exceedance of the maximum floor space ratio under the LEP. This is because it is a pre-condition to the grant of consent for development that breaches a development standard unless a clause 4.6 variation has been granted.

Footnotes

1 Clause 28D of the Central Sydney Local Environmental Plan 1996.

2 Clause 6.21 of the Sydney Local Environmental Plan 2012.

3 Adopted by the Council in December 2013.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions