Court Move Pays Off for Luxe Potts Point Apartments

Developer Terra Ferma will proceed with its luxury Potts Point project after its appeal was upheld in the NSW Land and Environment Court. The high-end project will deliver a six-storey building comprising five apartments as well as redevelop heritage elements of the site. The latter proved a point of contention during the court’s conciliation process. The block, that also incorporates seven basement levels to accommodate a vertical car stacker, a rooftop terrace and pool, is planned for 11A and 13A Wylde Street, and was designed by Tonkin Zulaikha Greer Architects. Plans for the site were submitted in August of 2023. The case went to the LEC on the basis of a deemed refusal by the City of Sydney. Terra Ferma general manager Heba Shaker said the developer saw opportunity for the site due to its “ideal location”. “But the process usually takes its time with councils because most of them are very under-resourced,” Shaker said. “For the Potts Point project, we strategically pursued the court process to secure a timely outcome, ensuring certainty, clarity and approval within critical timelines.” The process While the council process could often be collaborative rather than confrontational, time was the big issue, Shaker said. “Council’s initial responses were clear and constructive. [But] to ensure alignment with our project schedule and mitigate delays, we made the strategic decision to progress through the Land and Environment Court,” she said. ▲ A rendering of the restored heritage element of the project, dubbed Green Gables. After issues of affordable housing provisions—tricky in a five-apartment project in a blue-ribbon suburb such as Potts Point—were hashed out, one issue remained. “The heritage issues proved to be the sticking point,” Shaker said. With two heritage conservation area buildings onsite, Terra Ferma planned for the facade of one to be retained and integrated into the site, but the second proved more challenging. Mills &amp; Oakley special counsel James Oldknow was the contact solicitor for the applicant in the LEC proceedings, and said that heritage could often be a hot-button issue. “The court had before it a raft of evidence, which supported that the existing buildings were nearing the end of their useful life; not contributing to heritage conservation area in the way that their local classification may have suggested; and otherwise burdened by a number of defects that would require ongoing maintenance,” Oldknow said. ▲ The address is in a prime Potts Point location. “This decision provides further support for a balanced approach when assessing heritage demolition.” But this can stunt development, where buildings are retained beyond their useful lifespan. “The design of the new building was a central part to the DA’s success. The architects on this project, Tonkin Zulaikha Greer, did such a fantastic job to the extent that their proposal was considered by the court to exhibit design excellence,” Oldknow said. The designs for the Potts Point project were described in the judgment as “a well mannered and respectful addition to a corner of Potts Point”, by the commissioner. Courts or council? Despite the efforts of the NSW Government to fast-track development and improve assessment times, cases are still reaching the LEC after council determination delays. But the courts provide another pathway that also allows a reciprocal process and conciliation agreements, which worked well in the case of the Terra Ferma development. ▲ A rendering of the view of the new building from Oak Lane. “The reality is that the majority of deemed refusal appeals are able to be resolved collaboratively with local councils, or the number of issues with a DA are able to be sufficiently narrowed by agreement by the time of a contested hearing,” Oldknow said. “In that sense, the LEC pathway is clearly helping to resolve planning issues.” While scrutiny of the courts process has continued in the media and wider industry, planning cases going to court after a deemed refusal have been increasing, despite the efforts of the NSW Government to bypass council and fast-track development. “The deemed refusal LEC process has been there for decades, however it has never been more popular than the current times, and the court’s statistics show this,” Oldknow said. ▲ A rendering of the approved project overlooking Embarkation Park. “Our experience highlights the challenges inherent in local council processes,” Shaker said. “It underscores an important conversation around whether DA assessments would benefit from a more centralised, state-led approach to promote clarity and efficiency across the sector.” With councils under significant pressure and resourcing constraints, pursuing alternative pathways such as the court process has become an increasingly necessary and effective route for developers. “In these premium locations, where land values are substantial and projects tend to be boutique in nature, options like adding extra levels for affordable housing simply aren’t viable,” Shaker said. “[And] time is not a concern for a local council but timing is everything for a developer.”

Court Move Pays Off for Luxe Potts Point Apartments

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