2 Bay Street Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1222 | Case summary

The Applicant is granted leave to amend the Details of the Application filed with the Court on 30 September 2022 as shown in strike out: "Application for Commercial Building Demolition of existing buildings and cConstruction of a new commercial building with basement parking" 1. The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the amendment to the development application in the agreed amount of $22,000 within 14 days of these orders. 2. The Applicant's written request under cl 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP) to vary the height of buildings development standard under cl 4.3 of the WLEP is upheld. 3. The Applicant's written request under cl 4.6 of the WLEP to vary the floor space ratio development standard under cl 4.4 of the WLEP is upheld. 4. The appeal is upheld. 5. Development application DA280/2022 for the construction of a five-storey commercial building over three levels of car parking at 2 and 4-10 Bay Street and 294-296 and 298 New South Head Road, Double Bay, contained in Lots 24 and 25 in DP4606, Lot 100 in DP712017, and Lots B and C in DP955406 is determined by the grant of consent subject to the conditions set out in Annexure A.

The height of building standard is exceeded

The proposed development exceeds the height of building standard at cl 4.3 of the WLEP, which permits a maximum building height of 14.7m.
The proposal is for development with a maximum height of 20.15m measured from the surveyed level of the existing basement slab associated with the previous structure on the site.
The height exceedance is supported by a written request prepared in accordance with cl 4.6 of the WLEP by GSA Planning dated March 2023 (height request).
The height request relies on the first test as it is expressed in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe), in asserting compliance with the height standard is unreasonable and unnecessary as the objectives of the standard are achieved notwithstanding the non-compliance with the standard.
The objectives of the standard, at cl 4.3 of the WLEP, are as follows: (1) The objectives of this clause are as follows - (a) to establish building heights that are consistent with the desired future character of the neighbourhood, (b) to establish a transition in scale between zones to protect local amenity, (c) to minimise the loss of solar access to existing buildings and open space, (d) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, (e) to protect the amenity of the public domain by providing public views of the harbour and surrounding areas.
In respect of objective (a), the height request asserts: 1. The proposal's height is consistent with the built form in the Double Bay Centre area, as articulated in Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115, at [63], wherein desired future character is understood to be shaped by both development standards, and approved development that contravenes the standard, such as those depicted in the visual catchment, at Figure 6 of the height request. 2. Relatedly, the proposed built form steps back at upper levels to present a predominantly four-storey form when viewed from the public domain, and fully complies with the height standard at the New South Head Road frontage.
In respect of objective (b), the height request asserts: 1. The site is adjacent to the R3 Medium Density zone that permits a height of 19.5m. Any areas of additional height are well setback from the boundary so that a transition in height, bulk and scale is achieved to surrounding development.
In respect of objective (c), the height request asserts: 1. Shadow diagrams representing the effect of the proposed development on solar access and overshadowing on adjoining development at hourly intervals demonstrate a similar or improved outcome to a built form envelope that complies with that anticipated in the Woollahra Development Control Plan 2015, and maintains the requirement for three hours of solar access to habitable rooms at the winter solstice.
In respect of objective (d), the height request asserts: 1. The development application is supported by a View Impact Assessment prepared by Dr Richard Lamb (View Assessment), cited by the height request. Views from Nos 290 and 337 New South Head Road have been particularly considered, taking into account the proposed development, and approved developments at Nos 14, 24, and recently constructed development at 30-36 Bay Street. On the basis of the View Assessment, the height request demonstrates the recently constructed development at 30-36 Bay Street, and not the proposed development, obstructs water views from No 337 New South Head Road and any obstruction resulting from the proposal is no greater than would be obstructed by a development that complies with the height standard. 2. The impact on privacy to adjoining and nearby development is achieved by setting back windows within the exceedance, and through which a view or sightline can be obtained, greater than 12m from neighbouring residential development, and by avoiding any external terraces within the exceedance. 3. Visual intrusion resulting from the exceedance is minimised by the setback of upper levels, articulated facades and the inclusion of soft landscaping in planters and on external terraces.
In respect of objective (e), the height request asserts that as no public views are identified from the subject site, the objective is not applicable.
Next, the height request advances environmental planning grounds it considers sufficient to justify the contravention off the height standard. Those grounds are summarised as follows: 1. As a part four, part five storey development, the proposal is consistent with recently approved and constructed developments in the immediate vicinity of the site, identified in the height request, that also exceed the height standard. 2. Recently approved development includes development approved for the subject site (the original consent), that is now sought to be amended by the development the subject of this development application. The proposal, as did the original consent, provides a strong corner, consistent with the desired future character. 3. The proposal responds to the sloping topography of around 6m along Bay Street by arranging the highest built form at the corner of New South Head Road, with the remainder of the built form stepping down the slope in a northerly direction. 4. The proposal provides commercial floor space for which there is a recognised demand in the Double Bay Centre, bringing local employment and day time activation to the area.
Finally, the height request asserts consistency with the objectives of the zone, at [12], because the ground floor retail tenancies activate the street and promote the vibrancy of Double Bay, and upper level commercial floor plates contribute to the range of service and business uses in the area, and provide employment opportunities within an area serviced by bus and ferry networks. The proposed commercial tenancies will attract new business and commercial opportunities, and the proposal's bulk and scale are compatible with the desired future character for reasons outlined at [18(1)].
I note here that the Respondent is satisfied that the height request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the WLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development in the B2 Local Centre zone.
Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the WLEP.
Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the height development standard under cl 4.3 is justified.
I am satisfied under cl 4.6(4) that the height request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development within the B2 Zone, for the reasons given in the request.
I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the WLEP and I find no grounds on which the Court should not uphold the height request.

2 Bay Street Pty Ltd v Woollahra Municipal Council

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