Bureau SRH Pty Ltd v Waverley Council

The site and its context

1. The site is on the northern corner of Bronte Road and Porter Street, with rear lane access from Adams Lane. The surrounding development is primarily retail, commercial and mixed use along Bronte Road. There is residential development behind the site on the opposite side of the laneway.
2. The Waverley telephone exchange building is on the corner of Bronte Road and Birrell Street. It is a prominent building in the streetscape and is listed as a local heritage item.

Background and the proposal

1. Development Consent 419/2015 (the approved development) is for a four to five storey mixed use development which includes the following:

• Basement level with 12 parking spaces.
• Ground floor with retail tenancy and outdoor seating area fronting Bronte Road; rear access to the basement and 3 parking spaces; services.
• First floor with four 1 bedroom units and one 2 bedroom unit and a void over the outdoor seating area below.
• Second and third floors each with five 1 bedroom units and one 2 bedroom unit.
• Fourth floor with two 2 bedroom units.

1. The approved development breaches the height of buildings development standard of 15m on the western portion of the fourth floor (Drawing No DA201, 202 and 203 of 419/2015, exhibit 2). The approved development has a FSR of 2.06:1 (par 11(h) of exhibit 1).
2. The proposal is to modify the development consent as follows:

• Six car stackers to be added to approved car parking spaces in the basement.
• An additional ground floor retail tenancy facing Porter Street, deletion of 3 commercial car parking spaces and replacement with a loading area and amendments to service areas.
• An additional first floor apartment and deletion of the void over the outdoor seating area below.
• Two additional fourth floor apartments over the south-western form of the approved development, with a 2.5m setback from the Bronte Road façade.
• An amended roof form which is raised at the southern corner.

Planning framework

1. The site is zoned B4 Mixed Use under LEP 2012 and the proposal is permissible with consent. The objectives of the B4 zone, to which regard must be had at cl 2.3(2), are: • 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.
2. The height of buildings development standard for the site is 15m (Height of Buildings Map HOB_001 LEP 2012). The relevant objective of the height of buildings development standard at cl 4.3 of LEP 2012 is as follows: (d) to ensure that buildings are compatible with the height, bulk and scale of the existing character of the locality and positively complement and contribute to the physical definition of the street network and public space.
3. The FSR development standard for the site is 2:1 (FSR Map FSR_001 LEP 2012). The relevant objectives for the FSR development standard, at cl 4.4 of LEP 2012, are as follows: (b) to provide an appropriate correlation between maximum building heights and density controls, (c) to ensure that buildings are compatible with the bulk, scale, streetscape and existing character of the locality, (d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality.
4. Clause 4.6 Exceptions to development standards in LEP 2012 is in the following terms: (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out
5. Clause 5.6 of LEP 2012 permits an architectural roof feature that exceeds, or causes a building to exceed, the height of buildings development standard to be carried out with development consent. The objective of this clause is to encourage architectural flurries on the roofs of buildings that contribute to a varied and aesthetically pleasing skyline.
6. Waverley Development Control Plan 2012 (DCP 2012) includes objectives and controls for the number of storeys at Part E1 1.13. Both sides of Bronte Road between Ebley and Birrell Streets are identified as a maximum of 4 storeys. The control relevantly includes the following: The number of storeys (levels) correlates with the desired future urban form for the centre as set out in the Introduction to the Urban Form Controls. Setting the number of storeys is important as it ensures that floor to ceiling heights are not minimised to fit the maximum number of levels into the overall building height as prescribed in the WLEP 2012. Adequate ceiling heights are important for light penetration, internal air movement and cross ventilation as well as to allow for innovative environmental approaches to heating, cooling and ventilation. Objectives (a) To ensure buildings create a human scale to the street. (e) To strengthen the centre form with consistent heights along streets. Controls (a) Refer to the WLEP 2012 for numeric heights. Proposals on some sites may result in less than the maximum numeric heights due to topography or other site conditions however proposals cannot have any more storeys than specified on Figure 26.

Public submissions

1. Two resident objectors gave evidence at the commencement of the hearing on-site. They are concerned that the proposal is an overdevelopment of the site.

Expert evidence

1. The applicant relied on the expert evidence of Mr Alan Cadogan (urban design) and Mr Anthony Betros (planning). The Council relied on the expert evidence of Mr Sam George (urban design) and Mr Lee Kosnetter (planning). The experts gave their oral evidence during the site view and I have considered their evidence in the joint reports (exhibits 3, 4 and F).

Non-compliance with the height of buildings development standard in LEP 2012

1. In order for development consent to be granted for a development that contravenes a development standard in LEP 2012, I must be satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2012) and that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2012) and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2012).
2. The proposal has a maximum height above ground level of 16.07m, excluding the architectural roof feature.
3. The applicant's written request for the contravention of the height of buildings development standard in LEP 2012 justifies the numerical non-compliance with the development standard as follows:

• The proposal complies with the objectives of the standard and the zone.
• The numerical non-compliance is less than 10% of the development standard.
• The proposal complies with the height of buildings development standard of 15m at the parapet to the Bronte Road street wall.
• The site is in a prominent corner location. The high quality of the design, including the attractive roof feature, achieves a more desirable outcome for a corner site. The additional height is considered to be an appropriate urban response for a corner site and provides for a transition to the northern neighbouring properties.
• The additional height is recessed from the front approved building alignment which provides for a recessive built form to the Bronte Road frontage whilst also achieving an attractive and desirable transition from any future development further to the north.
• There is already a fifth level on the rear portion of the site and the proposal extends this approved level towards the Bronte Road frontage.
• The existing approved building form is unbalanced, with a partial fifth level on the rear portion of the site. The proposal, including the architectural roof feature, improves the contribution of the building to the streetscape and Bronte Road frontage.
• The additional height has no amenity impacts on surrounding existing and future development, such as overshadowing, view or privacy impacts.
• The additional height of the proposal will not be visible when viewed from Bronte Road following the development of the adjoining site to the north, nor will it be visible from the laneway.

1. I have considered the applicant's written request under cl 4.6 of LEP 2012 and I am not satisfied that the written request justifies that compliance with the height of buildings development standard in cl 4.3 of LEP 2012 is unnecessary or unreasonable in the circumstances of the appeal, for the following reasons:

• An exceedance of the height of buildings development standard is not justifiable on the basis of the form and height of the nearby Waverley telephone exchange building; as a gradation in the scale of development along Bronte Road would be an inappropriate response to the distinct and unique form of this public building. If the Council considers such an approach is warranted, it would be appropriately addressed as part of a strategic planning exercise and reflected in development standards for the properties on the north-eastern side of Bronte Road.
• The proposal is not consistent with the desired future urban form of Bronte Road, which is for 4 storeys. The 2.5m setback of the uppermost fifth level of the proposal does not achieve the desired four storeys along Bronte Road.
• The approved development responds to the topography of site and is consistent with the desired future urban form for the mixed use development along Bronte Road, whereas the proposal does not respond to the topography of the site. The step in the form of the approved development is appropriately articulated, as the higher rear portion of the development is visually separated from the front portion by the lobby recess in the form of the building shown on the southern elevation. Extending the residential use on fourth floor towards Bronte Road does not reinforce or contribute to the commercial use or form of buildings along Bronte Road.
• I do not accept the applicant's experts' evidence that this is a prominent corner site that warrants a non-compliance with the height of buildings development standard. This is not a significant corner site on Bronte Road. A desire for more prominent, higher buildings on corner sites is not reflected in the development standards in LEP 2012.

1. I am not satisfied that the proposal achieves the height of buildings development standard objective (d), to ensure that buildings are compatible with the height, bulk and scale of the existing character of the locality and positively complement and contribute to the physical definition of the street network and public space, nor that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances. As a consequence, there is no power to grant consent to the proposed units 21 and 22 on the fourth floor.

Non-compliance with the FSR development standard in LEP 2012

1. The applicant's written request for the contravention of the FSR development standard in LEP 2012 justifies the numerical non-compliance with the development standard as follows:

• The additional floor area associated with the addition of a unit on the first floor is contained within the building envelope of the approved development.
• The proposed additional floor area is compatible with the approved development.
• The proposal achieves a compatible form within the overall scale of development existing in the streetscape and is consistent with the desired future character of the locality.

1. I have considered the applicant's written request under cl 4.6 of LEP 2012 and I am satisfied that the written request justifies that compliance with the FSR development standard in cl 4.4 of LEP 2012 is unnecessary or unreasonable in the circumstances of the appeal, for the following reasons:

• The exceedance of the FSR development standard is less than the proposed 2.44:1 due to the deletion of units 21 and 22.
• I am satisfied that the proposal achieves the objectives for the B4 zone and the FSR development standard.
• The proposal and the approved development is compatible with the bulk, scale, streetscape and existing character of the locality, because the proposal, excluding the addition to the fourth floor, is contained within the building envelope established by the approved development.
• The proposal preserves the environmental amenity of neighbouring properties and does not result in adverse impacts on amenity of the locality, when compared to the approved development.
• The overall scale of the proposal, excluding the addition to the fourth floor, is consistent with the desired future urban form of Bronte Road.
• I accept the agreement of the urban design experts that the addition of the first floor unit and the deletion of the void over the outdoor seating area represents a superior design outcome for the development and that the proposed changes to the ground floor are acceptable.

Conclusion

1. A variation of the height of buildings development standard in LEP 2012 is not acceptable in the circumstances and proposed units 21 and 22, on the fourth floor, are to be deleted.
2. A variation of the FSR development standard in LEP 2012 is acceptable in the circumstances and I accept the agreed evidence of the planning experts that the proposed changes to the ground floor and first floor at the southern corner of the development are acceptable.

Directions

1. Directions were handed down on 16 June 2017 (Bureau SRH Pty Ltd v Waverley Council [2017] NSWLEC 1305), as follows: The applicant is to amend the architectural drawings as follows: - Units 21 and 22 are to be deleted and the roof area is to be shown as non-trafficable; - An awning consistent with the agreement of the experts is to be shown on the architectural drawings; - Updated revision letters are to be included in the amended set of architectural drawings. The parties are to agree on the number of car stackers, if any, required in the basement as a consequence of the deletion of units 21 and 22, and the basement plan is to be amended, if necessary, in accordance with that agreement. The applicant is to provide a revised FSR calculation for the proposal following the deletion of units 21 and 22. The amended architectural drawings are to be filed by 23 June 2017. The Council is to amend the conditions of consent as follows: - Updated revision letter in condition 1(a); - The agreed version of condition 3, "The approved materials, finish[es] or colours of the building must not be changed without the approval of Council." The conditions of consent are to be filed electronically by 28 June 2017. Liberty to restore on 2 days' notice. Orders will be made in chambers.
2. The amended plans were filed on 27 June 2017 and the conditions of consent were filed on 10 July 2017.

Orders 1. The appeal is upheld. 2. Development Application No. 512/2016 for alterations and additions to modify an approved, but not yet constructed, mixed use development (Development Consent 419/2015) is approved, subject to the conditions of consent at Annexure A. 3. The exhibits, other than exhibits 1 and A, are returned.

---

Susan O'Neill Commissioner of the Court 38952.17 O'Neill (C) (1.14 MB, pdf)

---

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 July 2017