A CONSULTANT for the developers of the two apartment buildings featured in Monday's Newcastle Herald wrote to Newcastle councillors on Monday night saying they will have "little choice" but to go to court if their project is rejected or even deferred to another meeting.
Although the threat of a Land and Environment Court case had already been noted by Newcastle City Council staff, the 5pm Monday letter has been interpreted by at least one councillor as a threat.
"I'm not sure councillors should be having to make decisions under duress and an apparent threat from an applicant," Cr John Church said.
The letter in the name of Anthony d'Arcy from Catalyst Project Consulting opens saying: "The applicant takes this opportunity to remind councillors of the issues which have been addressed over the course of the DA for 495 Hunter St, Newcastle."
"It is important to note that the report provided to councillors recommends approval.
"The assessing officers recommend approval after consideration of the design, its impact to neighbours, the UDCG's [Urban Design Consultative Group] comments and planning law.
"The assessing officer has considered the applicant's right to develop its land, within the constraints of other neighbouring buildings which generally have been given the right to develop their land to the boundary, and over the relevant height controls.
"These comments are not intended to reflect on past determinations, but to provide context to the assessing officers recommendation for approval.
"That the applicant of 495 Hunter St is the last to lodge an application in this precinct should not mean it is considered negatively, or be held to a different higher standard than other neighbouring developments."
Although it's understood the full UDGC has not officially reviewed the latest amendment to the plans, tonight's council papers quote the chair of the group as calling the project was "acceptable".
The letter refers to this, saying the UDGC "has implicitly supported the current design".
"If the DA is refused (or deferred) the applicant will have little choice but to consider an appeal to the Land and Environment Court," the letter continues.
"A report written by council's assessing officers recommending approval will inevitably be provided to the Land and Environment Court Commissioner.
"It would no doubt be a difficult position for Council to argue against the recommendation of its own town planning staff."
The letter concludes by saying: "Hoping the material set out above provides some clarity for councillors to take the necessary steps to approve the application in accordance with the council officer's recommendation. This would remove any requirement for the applicant to appeal to the Land and Environment Court."
The project is set to be considered at a meeting of the councillors sitting as the Development Application Committee at 6pm today.
THREE years of argument over over a narrow strip of land once fronted by Rogers Diamond Emporium on Hunter Street will come to a head on Tuesday night when a revised version of a previously rejected twin tower block again comes to a vote.
People living in the 12-storey Worth Place Apartments on the eastern side, and the Hilton Grugeon-backed GWH developers on the western side - building the 20-storey Sky Residence - are opposed to the project as it stands, as are Independent councillors Kath Elliott and John Church.
Tomorrow night's Newcastle council papers:
The Hunter Street tower would be 14 storeys and the one facing King Street 10 storeys, both with roof gardens.The project proposed 83 apartments (down from 87 and originally 92), as well as carparking and three retail/commercial tenancies.
Newcastle councillors, sitting as the Development Applications Committee, had voted to refuse the project on July 28, largely because of its design non-compliance and impact on neighbours.
The Urban Design Consultative Group, which advises the council on "design quality and amenity", was concerned the project did not "exhibit design excellence and remain(ed) problematic in a number of significant respects".
Cr Elliott said one Labor councillor voted against the project, and with another absent, the vote was lost. A rescission motion was lodged that night, and supported at a full council meeting on August 18.
The papers for tomorrow night's Development Applications Committee meeting quote the rescission motion as saying the July 28 refusal was "against the recommendation and advice of council officers" and that "a number of the cited grounds for refusal (were) factually incorrect" and "not developed in consultation with council officers".
"This significantly compromises council's ability to defend this matter should it escalate to the Land and Environment Court, which could lead to a costly outcome for ratepayers, and a poor outcome for objectors," the council papers say.
Cr Elliott said that forcing such arguments on elected councillors meant them agreeing with council staff on every issue, and approving every development simply because the proponents could threaten to go to the court.
She said she was opposed to this project both on its detail, and on the precedent it set in broader planning terms.
The papers say that more than 80 submissions had been received, mostly concerning the height, form and scale of the building, being a precedent-setting over-development of the site with insufficient set backs from its boundaries.
The papers say the architects have made successive changes to the plans and that the chair of the consultative group believes the design is now "acceptable".
The council papers also detail the lengths the developers said they went to trying to buy a building fronting Hunter Street that would have allowed them to reconfigure the site, but that the owner of the property wanted twice as much as they had valued the site at.
The project first surfaced in late 2017.
Its developer is listed as Sydney-based not-for-profit Interrelate Ltd (originally the Father and Son Welfare Movement). Its "family centre" at 495 Hunter Street will be knocked down for part of the project.
Worth Place Apartments resident Vicki Morante said she and her neighbours believed that even with "slightly increased" setbacks, the towers would still be a massive over-development of the site.
"We're going to be so close to each other it's not funny," Ms Morante said of the gaps between each building.
"Lower down the apartments will be in shade for all but an hour a day. We're not against development outright but this is just too much on a small site."
She said the council told those buying Sky Apartments it was "unlikely" the site in question would be developed because of its size.
"This is too many buildings squashed into too small an area," Ms Morante said.
A GWH letter to the council last week said to "approve a tall building on this land undermines the foundation of the decision to allow variations for the Sky Residence".
Cr Allan Robinson said he understood the concerns but said the developer should not be punished for being "the last man standing". It was not the developer's fault that the other two sites had been developed first.
Cr Robinson said he had voted against the project earlier on but now believed it deserved approval.
Cr Church said he believed "the first principle of public policy is to do no harm".
"This development harms the amenity and lifestyle of the residents in the neighbouring buildings," Cr Church said.
"It significantly breaches the Australian apartment guidelines. This is the wrong development on a narrow and constrained site. I stand by my resolution to refuse this development application."
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