Bondi Beachside Pty Limited v Waverley Council

Issues

1. Despite the amendments and provision of additional information the Respondent maintains that the development application should be refused by the Court on the following grounds: 1. That the development exceeds the applicable floor space ratio (FSR) and the written request to vary the FSR prepared by the Applicants is not well founded and should not be upheld by the Court. 2. That the development does not exhibit design excellence, a precondition that must be satisfied prior to the grant of consent pursuant to cl 6.9 of Waverley Local Environmental Plan 2012 (LEP 2012). 3. Whether it is appropriate to convert part of the commercial floor space on the first floor of the site to residential apartments on two grounds; firstly, on the basis that the development fails to activate the street frontage and secondly, does not reflect the desired future character of the Campbell Parade Centre character area. 4. Whether the proposed apartments on the first floor will have acceptable amenity. (Exhibit 1)

Site and Locality

1. The site is part of the Bondi Pacific development, a mixed-use development containing retail shops, restaurants, a pub, a gymnasium, residential and hotel apartments, located at 182 Campbell Parade, Bondi Beach (Lot 204 DP 1211700). The development application relates to a portion of the ground and first floor of the building fronting Campbell Parade.
2. The site is within the Bondi Beach commercial precinct and is opposite the Bondi Pavilion, Bondi Beach, and parklands.
3. The site is located within:

• The Bondi Beach Heritage Conservation Area under sch 5 of LEP 2012.
• The Bondi Beachfront Area, identified at Figure 37 of Part E of the Waverley Development Control Plan 2012 (DCP 2012).
• The Campbell Parade Centre character area (Area 'C') as identified at Figures 38 and 41 of Part E DCP 2012.

Public Submissions

1. The development application was notified by the Respondent for thirty days in accordance with the Waverley Community Participation Plan. One submission was received which raised concern that any works proposed under the development application should not restrict access to, or degrade, the existing through site link.
2. In determining the development application, I have read and considered the submission received by the public as required by s 4.15(1)(d) of the EPA Act.

Experts

1. The Court was assisted by town planning experts, Mr Gary Chapman for the Respondent and Mr David Waghorn (Applicants). The joint report of these experts was tendered as Exhibit 4 in the proceedings. The experts were also called for cross examination.

Preconditions to consent

1. Prior to considering the contentions raised by the Respondent in support of the refusal of the development application, it is necessary to address any relevant preconditions to the grant of consent: HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 at [16]. My consideration of the relevant preconditions follows.
2. The development application was lodged by the owner of the land: cl 23(1) of the Environmental Planning and Assessment Regulation 2021.
3. The development application includes a valid BASIX certificate, satisfying the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.
4. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) came into force on 1 March 2022. In considering whether the site is contaminated, as required by cl 4.6 of SEPP RH, I have had reference to the Statement of Environmental Effects accompanying the development application. I accept that the works are internal to an existing building currently used for the purposes for which consent is sought and that the works will involve minimal, if any, soil disturbance. No further consideration of contamination is required.
5. The land is not within either the Coastal Environmental Area or Coastal Use Area maps made pursuant to SEPP RH.
6. State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development (SEPP 65) applies to mixed use development with a residential component if three conditions are met. Firstly, the development consists of the substantial redevelopment or substantial refurbishment of an existing building. Secondly, the building is three storeys or more, and finally that the building contains at least four or more dwellings. By reference to the statement of facts and contentions (SOFC) prepared by the Respondent the site was originally approved for redevelopment by the grant of consent to 74 residential apartments, 68 hotel apartments, and two levels of retail space. The consent has been modified several times over the life of the building. Following a review of those consents, as summarised in the SOFC, the residential use of the building, and the number of residential units, have increased since the original consent through modification application DA/619/2007/A [575m² residential floor area added], DA/619/2007B [additional 20 residential units], DA/619/2007/H [additional 18 residential units] and DA/489/2014 which reduced unit numbers by one. (Exhibit 1)
7. The subject development application seeks to convert the existing first floor retail/commercial space into three residential apartments and two retail spaces. Applying the ordinary meaning of the word 'substantial' I am not persuaded that the subject development is either the substantial redevelopment or the substantial refurbishment of an existing building. It is, in my view, neither substantial when view quantitatively in the context of the existing building, nor qualitatively. I am satisfied that SEPP 65 does not apply: cl 4 SEPP 65.
8. If I am in error in my conclusion, I note that the development application is accompanied by a design verification statement prepared by a qualified designer satisfying the requirements of cl 29 of the Environmental Planning and Assessment Regulation 2021. Further, in satisfaction of cl 28 of SEPP 65, in determining the development application I have considered the comments from the Waverley Design Excellence Panel, the design quality of the development and the terms of the Apartment Design Guide (ADG) which was the subject of evidence from the town planning experts.
9. LEP 2012 applies to the site which is zoned B4- Mixed Use. The proposal is for 'shop top housing' which is a permitted use in the zone. In determining the development application, I have considered the following zone objectives: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail, and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To encourage commercial uses within existing heritage buildings and within other existing buildings surrounding the land zoned B3 Commercial Core.
10. Pursuant to cl 4.3: Height of Buildings of LEP 2012, the subject site is mapped with a maximum height of 15m. No works are proposed to increase the height of the building which complies with the height standard. (Exhibit J)
11. The question of whether the development application complies with cl 4.4: Floor space Ratio (FSR) was the subject of contention between the parties and is discussed commencing at [26].
12. The existing building, within which the development is proposed, is located within the Bondi Beach Heritage Conservation Area (HCA) and within the vicinity of heritage listed items. A Heritage Impact Assessment (HIA) has been prepared by the Applicants and submitted with the development application. I accept the conclusion of the HIA that the proposed change of use and minor façade works will have no impact on the HCA or proximate items. (Exhibit J) I am similarly satisfied that given the nature of the development proposed, consisting of minor physical alterations and predominantly internal works, the development will not have a detrimental effect on the significance of the heritage conservation area or the proximate items.
13. The subject site is mapped on the Key Sites Map and cl 6.9: Design Excellence in LEP 2012 applies. The question of whether the development application achieves design excellence as required by cl 6.9 of LEP 2012 was the subject of contention between the parties and is discussed commencing at [47].

Planning Controls

1. The proposed development is subject to the provisions of DCP 2012. Part E2 of DCP 2012 identifies that the subject site is within both the 'Bondi Beachfront Area' and the 'Campbell Parade Centre Character Area'. The following provisions of DCP 2012 are relevant to the proceedings:

'Part B- General Controls' relates to all development.

• B12: Design Excellence provides development controls in relation to design excellence. The objectives of the section are: "(a) To ensure development contributes to the architectural and overall urban design quality of Waverley. (b) To encourage variety in architectural design and character across large developments. (c) To identify the key components of good urban design. (d) To increase the value of site and context analysis and promote site specific design responses."
• The Respondent draws particular attention to control (e)(ii) of B12 which states: "(e) Development must consider the following: … (ii) Existing and proposed uses and use mix; …"
• B16.2: Active Street Frontages addresses active street frontages. The chapeau to the controls states in part: "This Part applies to commercial and mixed use development that is subject to Part E Site Specific Development. Active frontages include internal building spaces that have direct pedestrian access or visibility to the street and provide important centre activities such as commercial, civic and entertainment uses. These frontages contribute to the liveliness of a street, and are a key component of a people focused place.
• The objectives of the section are: (a) To promote pedestrian activity and safety in the public domain (b) To provide a high degree of surveillance over the street. (c) To provide transparency and visual connection between the street and the building's interior. (d) To facilitate future adaptability and flexibility of uses. (e) To provide high standards of accessibility. (f) To supplement the WLEP 2012 controls for active street frontage. (g) To maximise the amount of active frontages throughout centres. (h) To ensure development encourages appropriate streetscape activation and active participation by the public. (i) To ensure that development provides a well-connected, weather protected public domain to reduce the impact of wind and rain and provide adequate shade for pedestrians. (j) To create a 'public face' for buildings to enhance the character of streets. (k) To promote a high level of visual connectivity and physical accessibility between the street and the active frontage premises."
• The Respondent draws particular attention to controls (f) and (i) which state: "… (f) Reinforce corner frontages on primary shopping streets with shop or office front windows. … (i) First level active frontages are encouraged. Some centres require first level active frontages, refer to Part E Site Specific Development. …"

'Part E- Site Specific Development'

• The introductory paragraph to Part E2: Bondi Beachfront area states: "This Part contains general objectives and controls for development within the Bondi Beachfront Area as well as specific objectives and built form controls for five (5) Character Areas. A development is required to meet the general objectives and controls as well as the specific objectives and built form controls for the area in which the development is located."
• E 2.1.1: Public Domain Interface has the following objectives: "(a) To ensure priority is given to pedestrian movement. (b) To encourage retail trading and appropriate commercial uses at street level. (c) To encourage development with a strong street address and well-defined residential entries. (d) To ensure ground level building frontages are active, open, inviting and that shop fronts are maximised. (e) To provide continuous awnings for pedestrians in B4 - Mixed Use Zones. (f) To maintain the small shop character at ground floor in B4 - Mixed Use Zones. (g) To encourage publicly accessible through-site pedestrian access ways within B4 - Mixed Use Zones. (h) To provide safe pedestrian environments through reduced vehicular crossings on primary commercial streets."
• The Respondent argues that the following control in 2.1.1 Public Domain Interface is relevant: "… (b) All development to which this Part applies is to provide active street frontages in accordance with Part B16.2 Active Street Frontages. …"
• E 2.1.2 Building Use has the following objectives: "(a) To recognise the local role of the Bondi Beachfront Area. (b) To ensure that the Bondi Beachfront Area is not dominated by commercial and retail activity. (c) To ensure that the Bondi Beachfront Area maintains a high level of vibrancy. (d) To ensure that the Bondi Beachfront Area is afforded a high level of passive surveillance at all times. (e) To ensure continuous and active street frontages."
• The Respondent argues that the following controls in 2.1.2 Building Use are relevant: "(a) Consent must not be granted for development in relation to the use of a building erected or proposed to be erected on land in the Bondi Beachfront Area, if the Council is of the opinion that any part of a floor above the first floor will be used for the purpose of a Business Premises or Office Premises. (b) The ground floor and first floor of any development that is a building on land zoned B4 Mixed Use in the Bondi Beachfront Area as identified on the Area Map must have active street frontages and be used for retail premises, business premises, tourist and visitor accommodation or a combination of those uses. (c) The ground floor of any development that is a building on land zoned B4 Mixed Use in Hall Street or Curlewis Street must have active street frontages and be used for retail premises, business premises, or a combination of both."
• At E 2.2.3: Campbell Parade Centre describes the existing character and built form as: "Campbell Parade is the principal street that runs parallel to Bondi Beach. Gould Street and Jacques Avenue are secondary streets that run parallel to Campbell Parade (refer to Figure 41). A regular pattern of secondary streets run perpendicular to Campbell Parade, creating visually prominent corners at Lamrock Avenue, Hall Street, Curlewis Street and Beach Road. Campbell Parade is an integral element of the tourist image, providing retail, food and other services for the transient day/night time population and local community. Gould Street is an increasingly vibrant secondary street, providing specialist retail for visitors and the surrounding neighbourhood. Buildings between Roscoe Street and Lamrock Avenue have narrow frontages and are built to the street alignment, with notable facades that contribute to its Interwar heritage. These buildings are predominantly rendered masonry with parapets with a vertical expression through the use of bay or vertically proportioned windows, pilasters and few balconies, typically enclosed. Existing buildings generally have a south-eastern orientation that takes advantage of the views over Bondi Beach, generally without balconies. Many sites contain heritage items or contributory buildings and a large proportion of the area is located within the heritage urban conservation area. These buildings are generally intact and consistent with other 1920s/30s precincts in Sydney."
• E 2.2.3: Campbell Parade Centre has the following objectives and relevant controls: "Desired Future Character Objectives (a) To support and maintain the iconic role and unique character of the Campbell Parade retail strip as a separate area within the wider Bondi Beach Town Centre in providing local shops, services and residential accommodation for day visitors and the local community. (b) To increase access links between Campbell Parade and Gould Street to encourage pedestrian movement that supports local shops and increase the retail frontage. (c) To maintain the mixed-use character in the centre by locating small shops and services at ground level and level one with a diversity of residential accommodation above. (d) To ensure new development and major renovations are consistent with the existing character of the area. (e) To minimise heritage impacts on identified heritage items and conservation areas within this and adjoining areas. Control (a) Land use (i) Developments are to retain the mixed use character of the area by locating commercial at ground and 1st floor level and residential above. (ii) New developments should provide pedestrian through site access links between Campbell Parade and Gould Street. …"

1. The dictionary to DCP 2012 defines 'active frontage' (as opposed to active street frontages in B16.2(i)) as: "Street frontages where there is an active visual engagement between those in the street and those of the ground floors of buildings. Frequent building entries that face and open towards the street, transparent street frontages, quality materials and refined details, mixed land use help to provide active frontages."

Does the development exceed the applicable floor space ratio standard?

1. It is agreed between the parties that the FSR of the existing building, at 4.23:1, exceeds the 3:1 FSR standard for the site pursuant to cl 4.4 of LEP 2012.
2. In submissions Mr Simington for the Respondent argues that as the development proposes the creation of gross floor area (GFA) in a location of the building where it did not previously exist, the altered building does not comply with the development standard at cl 4.4. Further, that the principle established in the decision of the Court in Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174 at [58] ('Landcorp v City of Sydney') does not apply.
3. In the alternative, Mr Tomasetti for the Applicants relies on the decision of Landcorp v City of Sydney to conclude that: firstly, the development application is not for a building that exceeds the FSR standard at cl 4.4 of LEP 2012 as that exceedance already exists; secondly, that no additional FSR is proposed; and thirdly, that what is proposed by the development application is the use of the approved building and floor space within it differently.
4. On this basis Mr Tomasetti concludes that no written request pursuant to cl 4.6 of LEP 2012 is required to vary the FSR development standard at cl 4.3 of LEP 2012.

Findings

1. The following extracts of the decision of Duggan J in Landcorp v City of Sydney are relevant: "[55] The development as proposed in the DA is not development that contributes to or is altering the height of the building. It is, as it presently exists, at a height of 64m and, therefore, in excess of the maximum height of 55m fixed in the Height of Buildings Map for the Subject Site. [56] The context of this clause is that it is located in that part of the LEP which is directed to the provision of development standards for new development. It manages change. To read the clause in this context it can only be relevantly operative where the development proposed creates some exceedance to the height of a building as objectively determined by reference to the objective means of measuring height as provided for in the LEP. [57] This does not have the consequence that only wholly new buildings will be the subject of the development standard in this clause. In some cases this may be where an alteration to an existing building alters the nature and extent of an existing exceedance, or, where a compliant existing building is altered such that it exceeds the Height of Buildings Map. However, where development is related to a part of an existing building and the introduction of that development does not alter the height of the building the context does not indicate that the clause would operate relevantly on that development."
2. In their joint report the planning experts agree that the proposed development does not result in a net increase in GFA. (Exhibit 4) In other words, consistent with Landcorp v City of Sydney, they agree that the development application does not seek consent for development which contributes to, or exceeds, the FSR standard.
3. Development is defined at s 1.5(1) of the EPA Act as follows: (1) For the purposes of this Act, development is any of the following - (a) the use of land, (b) the subdivision of land, (c) the erection of a building, (d) the carrying out of a work, (e) the demolition of a building or work, (f) any other act, matter or thing that may be controlled by an environmental planning instrument.
4. The subject development application broadly seeks consent for three key things: firstly, to carry out work to the existing building, secondly, to change the use of existing commercial floorspace on the first floor to shop top housing and commercial, and finally to create an additional commercial tenancy on the ground floor. I am satisfied that these three components all relate to existing parts of the building and do not create additional GFA.
5. Accordingly, I adopt and apply the logic and the reasoning of Duggan J at [56]-[59] of Landcorp v City of Sydney to conclude that no written request pursuant to cl 4.6 of LEP 2012 is required to vary the development standard at cl 4.4 of LEP 2012.

Contravention of the floor space ratio standard.

1. The Respondent argues that the written request to vary the FSR prepared by the Applicants is not well founded and should not be upheld by the Court.
2. If the preceding conclusions are in error, I have undertaken an assessment of the written request prepared by the Applicants in accordance with cl 4.6 of LEP 2012 that seeks to justify the contravention of the FSR development standard. Following a review of the written request I am satisfied, for the reasons that follow, that development consent should be granted despite the non-compliance.
3. For the reasons outlined in the written request I am satisfied that it is established that firstly, compliance with the FSR development standard is unreasonable and unnecessary as the development is consistent with the objectives of the development and secondly, there are sufficient environmental planning grounds to support the variation proposed.
4. The objectives of cl 4.4: Floor Space Ratio are: (1) The objectives of this clause are as follows - (a) to ensure sufficient floor space can be accommodated within the Bondi Junction Centre to meet foreseeable future needs, (b) to provide an appropriate correlation between maximum building heights and density controls, (c) to ensure that buildings are compatible with the bulk and scale of the desired future character of the locality, (d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and the locality.
5. Objective (a) of the standard is not relevant to the proposed development as it is not located in the Bondi Junction Centre.
6. Given the proposed development does not result in an increase in the overall height, FSR or building envelope of the existing building I accept the argument advanced in the written request that the proposed development is consistent with the objectives of the standard. I am satisfied that the test at cl 4.6(3)(a) of LEP 2012 is met.
7. The written request advances six environmental planning grounds pursuant to cl 4.6(3)(b) of LEP 2012. I am satisfied that wholistically these grounds are environmental planning grounds and are sufficient to justify the variation.
8. I find that the objectives of the development standard are achieved despite the breach, and the Applicants's written request has adequately addressed the matters required to be demonstrated by subcl 4.6(3) of LEP 2012. I am satisfied that those matters have in fact been demonstrated which is the outcome required by subcll 4.6(3) and (4)(a)(i). It follows that strict compliance with the development standard in cl 4.4 of LEP 2012 is both unreasonable and unnecessary.
9. The Respondent contends that the development is inconsistent with the objective of the zone 'to provide for a mixture of compatible uses'. I am not persuaded by the Respondent's submissions in this regard. I accept and prefer the argument advanced in the written request that the development application will enable the redistribution and repurposing of the existing non-residential floor space for modern high quality retail tenancies and residential apartments. I accept that the proposed uses are compatible with each other as evidenced in the existing building's mixed usage, the findings of the addendum acoustic report filed on 9 May 22 and the fact of shop top housing permissibility in the zone.
10. I find that the Proposed Development will be in the public interest because it is consistent with the objectives of the B4 Mixed Use zone despite the breach of cl 4.4 of LEP 2012. Those objectives are extracted at par [19].
11. For all those reasons, I find that the proposal promotes the economic use and development of the land consistent with its zone and purpose.
12. The concurrence of the Secretary required by cl 4.6(5) is assumed as the contravention of the FSR standard does not raise any matter of significance for State or regional environmental planning given the nature of the development, and there is no public benefit in maintaining the standards on the facts of this case.

Does the development exhibit design excellence?

1. The subject site is mapped on the Key Sites Map and cl 6.9: Design Excellence in LEP 2012 applies. The consent authority must be satisfied that the development exhibits design excellence to enliven the power to grant consent: cl 6.9(3) of LEP 2012. Further, in determining the development application the consent authority must have regard to the matters listed at cl 6.9(4) of LEP 2012, they are: (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the development will improve the quality and amenity of the public domain, (c) whether the development detrimentally impacts on view corridors, (d) how the development addresses the following matters - (i) the suitability of the land for development, (ii) existing and proposed uses and use mix, (iii) heritage issues and streetscape constraints, (iv) the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts such as overshadowing, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access, circulation and requirements, (x) the impact on, and any proposed improvements to, the public domain, (xi) the quality and integration of landscape design.
2. The Respondent contends that the proposed development does not achieve design excellence on two grounds. Firstly, as the development does not provide a suitable mix of uses and secondly, as the development is not consistent with the desired future character of the Bondi Beachfront Area and the Campbell Parade Centre.
3. The evidence of the planning experts in relation to this contention centres on the matters for consideration at subcll 6.9(4)(d)(i) 'the suitability of the land for development' and (ii) 'existing and proposed uses and use mix'. Their competing views summarised in the following.
4. Mr Chapman argues that the proposed development does not achieve design excellence on two main grounds. Firstly, the proposal does not provide a suitable mix of uses, and secondly, that the proposed development is not consistent with the desired future character of the Bondi Beach commercial precinct. He summarises his concerns as follows: "The proposed use of the first floor for residential accommodation fronting Campbell Parade and Beach Road does not meet design excellence pursuant to clause 6.9(3)(i) and (ii) because the residential accommodation is contrary to the development controls for the Bondi Beachfront and Campbell Parade Centre and in this case is not a suitable development for the Bondi Pacific building or provide(sic) a suitable mix of commercial floor area contrary to the DCP controls (addressed below) and is not suitable at the north-east corner of development being a prominent corner building at the northern edge of B4 Mixed Use zone and the Campbell Parade Centre." (Exhibit 4)
5. In support of his conclusion that the proposal does not provide a suitable mix of uses Mr Chapman argues that both part B16: Public Domain and E2: Bondi Beachfront of DCP 2012 contain specific objectives and controls that apply to the proposed redevelopment of the subject site and development in the Bondi Beachfront area more generally. He argues that these controls, and in particular E 2.1.2 (b), require the activation of the street frontage which is achieved by locating commercial premises both at ground and first floor. He notes that the subject development application is inconsistent with this development control as it removes commercial uses at the first floor fronting Campbell Parade. Further, he argues that the development application is inconsistent with: "- Objective (f) of Part B16.2 - Active Street Frontages of the DCP states to supplement the WLEP 2012 control for active street frontage and control (i) states First level active frontages are encouraged. Some centres require first level active frontages, refer to Part E- Specific Development. - Part E2 of the DCP control 2.1.1(b) states All development to which this Part applies is to provide active street frontages in accordance with Part B16.2 Active Street Frontages." (Exhibit 4)
6. Further, Mr Chapman notes that the proposed residential accommodation at first floor is, in his assessment, a variation to the following development controls:

• E 2.1.1: Public Domain, control (b) which requires the provision of active street frontages in accordance with Part B16.2; and
• E 2.1.2: Building use, control (b) which requires that the ground and first floor of any building on land zoned B4 Mixed use in the Bondi Beachfront area to have active street frontages and be used for either retail premises, business premises, tourist and visitor accommodation or a combination of those uses.

1. In relation to his second concern, that the proposed development is not consistent with the desired future character, Mr Chapman argues that the conversion of the first-floor use, fronting Campbell Parade, to residential is inconsistent with the desired future character of the Campbell Parade Centre as defined at E 2.2.3 of DCP 2012. Specifically, he argues:

• that the proposed residential accommodation is incompatible with the objective (c) of the desired future character objectives which seeks 'to maintain the mixed-use character in the centre by locating small shops and services at ground level and level one with a diversity of residential accommodation above.'. For the same reasons the development is contrary to control (a) of Part E 2.2.3 of DCP 2012.
• the development reduces rather than maximises the amount of active frontage with commercial uses in the Campbell Parade Centre at the first-floor level.
• That the subject site is located on a visually prominent corner of the precinct, being the end corner of the B4 Mixed use zone and the Campbell Parade Centre. (Exhibit 4)

1. In the alternative Mr Waghorn argues that the requirement of cl 6.9(4)(ii) of LEP 2012 for the consent authority to have regard to "existing and proposed uses and use mix" but does not determine a specific mix for the existing or proposed uses which a development is required to meet. Addressing the concern of the Respondent and Mr Chapman that the development application will no longer provide commercial uses facing Campbell Parade at the first floor of the proposed development, Mr Waghorn argues that:

• Firstly, the controls in Chapter E2 directed to the use of the first floor as commercial has not been consistently applied; and
• Secondly, that a first-floor commercial use is not characteristic or representative of the character of the Bondi Beachfront Area or the Campbell Parade Centre Character areas.

1. In support of his first argument Mr Waghorn references the following approvals proximate to the subject site:

• DA-619/2007/H involved the conversion of 1,397 sqm of approved retail space on the first floor into 18 residential apartments at the southern end of the subject site on the first-floor level. Mr Waghorn notes that this application was lodged on 11 July 2013 and the provisions of Chapter E2 of DCP 2012 were applicable.
• DA-361/2018 for new shop top housing (first floor level residential) at Nos. 134-138 Campbell Parade was approved.
• DA-323/2019 for new shop top housing (first floor level residential) at Nos 12-126 Campbell Parade was approved. (Exhibit 4)

1. Mr Waghorn argues based on the frequency of their variation, the DCP controls should be given a reduced weight in the assessment of the merits of the current development application.
2. Underpinning his second argument Mr Waghorn undertook a visual review of the use of the first-floor level of properties fronting Campbell Parade. The outcome of that review was summarised in the following map which formed part of the planning joint report. The red colouration indicates level 1 commercial use, the yellow a residential use.
3. Mr Waghorn concludes that the use of the first floor of buildings fronting Campbell Parade is not a dominant element in the Bondi Beachfront Area or in the B4 Mixed use zone. On this basis Mr Waghorn concludes the development application is compatible with the character of the locality. (Exhibit 4)
4. Finally, Mr Waghorn's evidence undertakes an analysis of the relevant controls in Part B and E of DCP 2012 and the difference between their requirements and standards. He summarises the difference as follows:

• Part E2.11 and E2.12 of DCP 2012, the general controls for Bondi Beachfront, focus on ground and first level areas containing active street frontages.
• Part B16.2.1 only encourages first floor active frontages and then defers to the controls detailed in Part E- Site Specific Development.
• That the term active street frontage(s) is defined differently throughout DCP 2012. For example, he notes that DCP 2012 at E2.1.2(b) states that actives street frontages can be used for 'retail premises, business premises, tourist and visitor accommodation or a combination of those uses'; whereas E 2.2.3(b) requires commercial uses at both ground and first floor; and finally, the definition of the term "active frontage" is defined in DCP 2012 as: "Active Frontage: Street frontages where there is an active visual engagement between those in the street and those of the ground floors of buildings. Frequent building entries that face and open to towards the street, transparent street frontages, quality materials and refined details, and mixed landuse help to provide active frontages."

1. In response to Mr Chapman's evidence, Mr Waghorn argues that:

• He gives too much emphasis to the desired future character statement for the Campbell Parade Centre (at E2.2.3 of DCP 2012) where cl 6.9 of LEP 2012 makes no reference to desired future character.
• Applying Woollahra Municipal Council v SJD DB2 Pty Ltd [2020] NSWLEC 115, desired future character is not defined in LEP 2012 by reference to DCP 2012, or engaged in cl 6.9 of LEP 2012, therefore the provisions of E 2.2.3 of DCP 2012 are irrelevant to a determination of design excellence.
• Mr Chapman places too much emphasis on the site being the northern corner of the B4 Mixed use zone and the Campbell Parade Centre. In the alternative Mr Waghorn argues that he ignores two relevant factors. Firstly, that the Campbell Parade Centre Map differs from the zoning map and includes the properties at 1-7 Beach Road, meaning the subject site is not the end of the character precinct. Secondly, that the Campbell Parade North locality statement (to next locality to the north of the site) stipulates that the residential character of the locality is maintained with retail at street level, however that is not a characteristic of the locality at this time.

1. In determining the contentions in dispute, and the merits of the development application, I have read and considered the submissions made by Mr Simington for the Respondent and Mr Tomasetti for the Applicants.

Findings

1. Following a consideration of the evidence in the proceedings I am satisfied that the development application exhibits design excellence, satisfying the precondition at cl 6.9 of LEP 2012. In reaching this state of satisfaction I have had regard to the matters listed at subcl (4) of cl 6.9 of LEP 2012. In my assessment the Respondent's first contention is not made out. My reasons are summarised below:

• I am satisfied that the proposed development is of a high standard of architectural design and incorporates materials and detailing appropriate to its location and the architectural language of the existing building.
• I am satisfied that the proposed development will not detrimentally alter the form or external appearance of the building. Further, in my view, the creation of an additional retail/commercial space at the ground floor as part of the proposed development will improve the activation of the public domain.
• There is no contention, or factual basis by which the proposed development would detrimentally impact on views.
• I am not persuaded by Mr Chapman's evidence that the proposed use of the first floor for residential accommodation is contrary to the achievement of design excellence on either ground he advances. I accept and prefer the interpretation of the development controls in DCP 2012 articulated by Mr Waghorn. Further, the controls at B16.2 'Active Street Frontages' apply to the subject site. The chapeau to the provision notes that active street frontages include internal building spaces that have direct pedestrian access or visibility to the street. The subject site has such a frontage. The development application will result in additional retail/ commercial space at ground floor fronting Campbell Parade, and the maintenance of commercial/ retail spaces at the first floor fronting the internal building space. I note that the Respondent does not identify a specific control at B16.2 that is not met, but nonetheless I am satisfied that the development will provide an active street frontage of the kind envisaged by Part B16.2 of DCP 2012 and meets the objectives of the standards.
• In relation to control B at Part E of 2.1.2: Building Use of DCP 2012 the Respondent argues the development does not provide for an active street frontage, or a retail/ commercial use at the first floor. The definition of active frontage (refer paragraph [59]) is directed to visual engagement between people in the street and those at the ground floor of the building. The development application improves the activation of the ground floor level of the existing building by the removal of a service area and replacement with a commercial space. I am not persuaded that the control is varied or that Mr Chapman's argument of non-compliance, if it was accepted, is sufficient to support a conclusion that design excellence is not achieved.
• Mr Chapman argues that the development is not consistent with the desired future character of the Campbell Parade Centre character area. In my view, this consideration is tangential to the matter listed at cl 6.9(4)(d)(ii) of LEP 2012 which addresses existing and proposed land uses and mix. In determining the development application, I adopt and prefer the approach, analysis and evidence of Mr Waghorn detailed at [57]-[59]. On that basis I am satisfied that the development application addresses the existing and proposed uses and use mix.

1. Having considered the remaining matters at cl 6.9(4)(d) of LEP 2012 I am satisfied that when applied to the proposed development they support a conclusion that the development exhibits design excellence.
2. I find that the proposed development exhibits design excellence and that the precondition at cl 6.9(4) of LEP 2012 is met.
3. On the preceding grounds I am satisfied that neither the Respondent's second or third contention in relation to the achievement of design excellence, street activation or compatibility with desired future character are made out.

Consideration of the merits of the proposal.

1. Finally, the Respondent contends that the first-floor apartments will have poor amenity as a result of acoustic impacts, room depth and poor solar access.
2. As detailed at [43] the Applicants prepared an addendum acoustic report addressing the potential for noise transmission between the first-floor commercial use and the proposed residential apartments. That acoustic report concludes that noise attenuation can be achieved, using specific materials, to ensure that the requirements of the NCC Building Code of Australia are met. Compliance with this requirement is incorporated in the annexed conditions of consent.
3. In their joint report the experts agree that proposed apartment 101 (the northern corner apartment) achieves an acceptable level of solar access.
4. However, Mr Chapman argues that both apartments 1.02 and 1.03 achieve poor solar access to their habitable space, that being less than two hours, and none to the living areas between 9am and 3pm on June 22. Mr Chapman argues that the kitchen areas will achieve poor natural light due to the proposed room depth, or distance of this space from the balcony glass line. Mr Chapman argues that these impacts are indicative of the lack of suitability of the first floor of the existing Pacific Bondi building to residential accommodation. Further, in his evidence Mr Chapman notes that the apartments seek to vary the design criteria in Part 4D-2 of the ADG, namely that: (1) habitable room depths are limited to a maximum of 2.5 times the ceiling height; and (2) that in open plan layouts the maximum habitable room depth is 8m.
5. Mr Chapman maintained these views in oral evidence and concludes that the development application should be refused as it proposes residential apartments with poor internal amenity. (Exhibit 4)
6. In the alternative Mr Waghorn details in his evidence the following parameters of the proposed development:

• Apartment 1.02 has a living room depth of 8.75m;
• Apartment 1.03 has a living room depth of 9.2m;
• The proposed floor to ceiling height of 3.26m.

1. Mr Waghorn argues that, applying the design criteria at Part 4D-2 of the ADG that habitable room depths are limited to a maximum of 2.5 times the ceiling height. Applying that criterion, he concludes that the room depths of Apartments 1.02 and 1.03 fit comfortably within the room depth of 9.78m that applies to a ceiling height of 3.26m.
2. Further Mr Waghorn argues that both Apartments 1.02 and 1.03 will achieve direct solar access until 9.30am in midwinter and that given their north-eastern orientation and the site location will benefit from expansive views of Bondi Beach and the ocean.
3. For these reasons Mr Waghorn concludes that on merit the amenity of the proposed residential apartments is acceptable.

Findings

1. I note that at [16] I concluded that the provisions of SEPP 65, and accordingly the ADG, are not directly applicable to the subject development application. However, the design guidance and provisions of the ADG see to codify parameters of good residential amenity and are a relevant framework to analyse the Respondent's contention that the proposed apartments will have poor residential amenity.
2. On the evidence I am not persuaded that the amenity of the proposed apartments will be poor for the following reasons:

• I accept the agreement of the experts that Apartment 1.01 will receive acceptable solar access in mid-winter. This apartment also has the benefit of a north facing balcony, shared between the three bedrooms, and an east facing balcony adjacent the apartment living areas.
• I accept that Apartments 1.02 and 1.03 will not receive two hours of sunlight between 9am and 3pm in mid-winter. However, I am not persuaded that this is of sufficient detriment to conclude that the internal amenity of the apartments is unacceptable. I am satisfied that the introduction of skylights in the balcony awnings in the amended plans, whilst not achieving direct sunlight, will assist in improving daylight to the apartments.
• I accept the evidence of Mr Waghorn that the increased floor to ceiling height will assist with daylight penetration into the floor plate of the proposed apartments. I accept that the rear of the kitchen areas may not achieve sunlight penetration. However, I am satisfied that such an impact on internal amenity, when considered in the overall assessment of the development application, is offset by the relative size of the apartments, their outlook, the high amenity of the location and proximity to public open space.

1. If I am incorrect in my conclusion on the applicability of SEPP 65, and thus the ADG, I am satisfied that even applying the weight of an environmental planning instrument and a development control plan respectively, the variation to the provisions in the ADG noted by the Respondent are not sufficient to warrant the refusal of the development application. On merit I am satisfied it would be appropriate to vary the design criteria at Part 4A-1 and Part 4D-2 of the ADG in this instance.
2. I am satisfied that when viewed holistically the internal amenity of the proposed first floor apartments are acceptable. In my assessment the Respondent's final contention is not made out and the development application should be granted consent subject to annexed conditions.

Conclusion

1. After an assessment of all the evidence under s 4.15 of the EPA Act including the evidence of the objector, I am satisfied that the amended development application is acceptable on its merits. In my opinion the development application warrants approval subject to the annexed conditions.

Orders

1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to development application DA/415/2020 for conversion of the existing retail premises on the first floor of the existing building into three residential apartments and two retail premises and ground floor alterations to remove an existing stair and lift to create an additional ground floor retail premises at 182 Campbell Parade, Bondi Beach (Lot 204 DP 1211700), subject to the conditions of consent in Annexure A. 3. Exhibits are returned except for Exhibits A, B, J and 1.

Commissioner of the Court (Annexure A) (276935, pdf)

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