A NSW court has knocked back approval for a luxury apartment development in Sydney’s eastern suburbs over housing supply concerns, in a decision quoting the Rolling Stones’ You Can’t Always Get What You Want.
The judgment was delivered months after the multimillion-dollar residences were first advertised as “now selling”.
The proposed redevelopment in the harbourside suburb of Elizabeth Bay stoked debate about housing affordability and density because it would replace 28 units with 20 larger apartments and push out renters in more affordable flats. The original residents have moved out.
Developer Fortis, which is not giving up on its $23 million proposal, sought approval to demolish two 1970s apartment blocks running from Onslow Avenue to Billyard Avenue and to construct two eight and five-storey buildings of mostly three-bedroom apartments.
NSW Land and Environment Court Commissioner Peter Walsh said in a decision on Thursday that the proposal would “decrease housing provision overall” and “decrease the availability of more affordable housing”.
The site includes the building at 10 Onslow Avenue, Elizabeth Bay.Credit: Rhett Wyman
He said this worked against the residential zoning objective, set out in local planning controls, to “provide for the housing needs of the community”.
“Given this finding, power is not available to grant consent to the proposal,” he said.
He pointed to a report this year by the National Housing Supply and Affordability Council that “identifies Australia as in a ‘housing crisis’.”
“There are obvious negative social impacts associated with the proposal … centred on the important matter of the reduction of housing which meets community need,” Walsh said.
Walsh referred to the Rolling Stones’ 1969 hit and Coldplay’s Fix You, both of which refer to “wants” and “needs”, in examining the meaning of the planning objective to “provide for the housing needs of the community”.
An artist’s impression of the Fortis proposal.Credit: Fortis
He distinguished a housing need from “demand, or ‘want’ for the form of housing proposed”.
As the Stones had it: “You can’t always get what you want/But if you try sometimes, well, you might find/You get what you need.”
Walsh dismissed the appeal brought by Fortis against the City of Sydney’s earlier deemed refusal of its development application. An application is deemed to have been refused if it is not decided within a set timeframe. He refused consent for the development.
In documents filed in court, the City of Sydney had previously set out a number of “contentions that the application should be refused”, including that the proposed height of the development “is an uncharacteristic form within the streetscape”.
The council had also pointed to 77 submissions from the public objecting to the proposal.
However, Fortis produced revised plans this year to address issues raised by the council. By the time of the hearing in November, the parties had agreed on consent orders that would have seen development approved if the court agreed.
Fortis associate director of development and head of acquisitions John Yacoub said the developer was “naturally disappointed by this decision, especially given our close collaboration with the City of Sydney Council”, but “this outcome is always a risk in the property development process”.
Yacoub said “early indications” from the developer’s legal team suggested there were “strong grounds for an appeal”, and “we are committed to exploring all avenues to achieve a successful outcome”.
Fortis was also considering an alternative planning approval pathway that might run “concurrently with the appeals process”.
“It’s important to note that, although we have had development refusals over the years, we have always succeeded in obtaining approvals at a later date,” Yacoub said. He pointed to a five-storey commercial project in Double Bay, where consent was granted after an initial refusal.
The developer remained “confident that we will navigate the various processes and ultimately deliver a result that reflects the high standards synonymous with Fortis”.
Fortis’ advertising sign outside 10 Onslow Avenue in Elizabeth Bay in October.Credit: Louise Kennerley
A City of Sydney spokesperson said that as part of the appeal process, “the developer amended their plans in response to issues raised” by the council.
“These included changes to help preserve the character of the area, protect residential amenity and minimise view loss or shadow impact.”
The council’s experts had “conducted a detailed assessment” of the amendments “and considered that the revised proposal was broadly in line with the requirements of the planning controls and the issues initially raised had been resolved”.
The plan was not subject to new City of Sydney rules, yet to take effect, aimed at prohibiting developments reducing the net number of dwellings by more than 15 per cent. But the decision sheds light on how similar applications may be considered.
Contracts for the sale of off-the-plan apartments may be entered into before development consent, and Fortis erected signs in October advertising “Luxury residences now selling.”
Selling off-the-plan before consent means a developer is taking a risk about approval. Typically, contracts of this kind allow buyers to rescind the contract and claw back their deposit.
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