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 2000[1] 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 competitive 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

Ultimately, 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.