COMMISSIONER: This appeal relates to proposed development on land in Bondi Junction that comprises two primary components described broadly as follows:
1. Firstly, development application DA-157/2022 (DA) seeks consent for demolition of an existing building, and construction of a 14 storey shop top housing development over basement car parking, 39 apartments, retail tenancies on 376-384 Oxford Street, and swimming pool at 362-384 Oxford Street, Bondi Junction.
2. Secondly, integral to the DA is an application for development consent for alterations to an existing development consent DA-89/2016 for shop top housing development at the adjoining site known as 362-374 Oxford Street (2016 Consent).
Amalgamation of seven lots is also proposed, as is the extension of 5 levels of basement car parking under 376-384 Oxford Street that also comprises plant and waste services, loading dock and the like.
The DA was lodged on 26 April 2022 and notified in accordance with the Waverley Community Consultation Plan 2019 from 11 May 2022.
On 21 September 2022, the Waverley Local Planning Panel refused the development application.
On 27 October 2022, the Applicant in these proceedings, CASSA BLANKA Pty Ltd, filed an appeal in Class 1 of the Court's jurisdiction under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) and amended the development application by Notice of Motion filed with the Court on 21 June 2023 (the Amended DA).
The parties agree the Amended DA, and additional material filed by the Applicant on 13 September 2023, resolves the contentions originally pressed by Waverley Council (the Respondent).
Accordingly, while the matter was initially listed before me for hearing on 13-14 September 2023, the parties sought for the matter to be re-allocated for conciliation under s 34 of the Land and Environment Court Act 1979 (LEC Act), and agreed to me presiding over the conciliation.
On 13 September 2023, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the LEC Act at which I presided.
At the conciliation conference, the parties reached agreement on the matters in contention, and a signed agreement was filed with the Court on 13 September 2023, in accordance with s 34(10) of the LEC Act.
The parties ask me to uphold the appeal and grant conditional development consent to the development application according to terms set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the Amended DA. There are jurisdictional prerequisites, with respect to the following environmental planning instruments that must be satisfied before this function can be exercised:
1. Waverley Local Environmental Plan 2012
2. State Environmental Planning Policy No 65 - Design quality of Residential Apartment Development 2002
3. Environmental Planning and Assessment Regulation 2021
4. State Environmental Planning Policy (Transport & Infrastructure) 2021
5. State Environmental Planning Policy (Resilience and Hazards) 2021
6. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
For the reasons set out below, I am satisfied that the parties' decision is a decision that the Court could have made in the proper exercise of its functions.
Firstly, the site is located within the MU1 Mixed Use zone according to the Waverley Local Environmental Plan 2012 (WLEP), in which shop top housing and commercial premises are permitted with consent, where consistent with the relevant objectives for development in the MU1 zone:
• To encourage a diversity of business, retail, office and light industrial land uses that generate employment opportunities.
• To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.
• To minimise conflict between land uses within this zone and land uses within adjoining zones.
• To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.
…
• To provide direct, convenient and safe pedestrian links between the Bondi Junction bus concourse and rail station and Oxford Street Mall, and reinforce the bus and rail interchange as a major passenger transport facility.
• To prioritise employment opportunities and health related uses to ensure Bondi Junction carries out its role as a strategic centre within Greater Sydney.
• To provide for a range of other uses, including light industrial, that serve the surrounding neighbourhood without impacting on the amenity of the adjoining uses.
• To encourage the provision of affordable housing.
[2]
The nature of the consent sought
As stated at [1], only one development application is before the Court in this appeal. However, the development application seeks consent for what may be characterised as 'new development' on that portion of the site known as 362-384 Oxford Street, and certain alterations to development the subject of the 2016 consent on that portion of the site known as 362-374 Oxford Street.
The alterations to the development the subject of the 2016 Consent are clearly identified on the architectural plans (Exhibit A, Tab 17), and in Appendix A of the agreed conditions of consent that identify the amendment of conditions contained within DA-89/2016 arising from Condition 2 in Annexure A of this decision, including Conditions 11, 13, 29, 35, 54, 113, 130, 131, 132, 133 and 134.
In so doing, the parties rely upon subss 4.17(1)(b) and (5) of the EPA Act, to amend Development Consent DA-89/2016 as granted on 24 August 2017 so that Development Consent DA‑89/2016 is consistent with the development consent now sought for the site known as 362-384 Oxford Street, and otherwise legally described as Lot 4 in DP 508369, Lot 5 in DP 39086, Lot 6 in DP 39086, Lot 7 in DP 39086, Lot 1 in DP 163647, Lot 10 in DP 1128739, Lot 12 in DP 717346.
In order to give effect to such an amendment to the 2016 Consent, the agreed conditions of consent require the Applicant to provide written notice as to the modification or surrender of the 2016 Consent in accordance with the requirements of s 4.17(5) of the EPA Act and s 67 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), so that, consistent with s 67(4), Development Consent DA‑89/2016 may be modified.
I record here that no aspect of the development the subject of the development application has yet been commenced.
As was shown in Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61, at [3], seeking alterations and additions to development the subject of an existing consent is a course of action available to an Applicant.
[3]
The height standard is exceeded
Clause 4.3 of the WLEP applies a height standard of 38m on the land the subject of the development application, with the following objectives:
(a) to ensure building heights preserve the environmental amenity of neighbouring properties and public spaces and, if appropriate, the sharing of views,
(b) to accommodate taller buildings on land in Zone E2 Commercial Centre in the Bondi Junction Centre and establish a transition in scale between adjoining zones to protect local amenity,
(c) to maintain satisfactory solar access to existing buildings and public areas,
(d) to establish building heights that are consistent with the desired future character of the locality.
The proposed development on that portion of land known as 376-384 Oxford Street is for shop top housing with a maximum height of 46.31m, that equates to an exceedance of 8.31m above the height standard.
The Applicant relies on a written request authored by GYDE dated June 2023 in respect of the height exceedance (the height request), that notes the development the subject of the 2016 Consent is 52.29m in height, which exceeds the height standard by 14.29m.
I am satisfied the height request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the WLEP for the reasons set out in the height request, summarised as follows:
1. Firstly, I accept compliance with the height standard is unreasonable or unnecessary in the circumstances of the case, because the proposed development complies with the objectives of the standard, at [20], notwithstanding the non-compliance. It achieves this by preserving environmental amenity that is the subject of the first objective, such as reducing the degree of overshadowing at the western end of Oxford Mall when compared to a complying development, retaining views along Newland Street, demonstrating that wind effects on the public domain are acceptable, and that the impact on traffic movements in the area are negligible.
2. I also accept the exceedance contributes to a transition between the height of buildings on land now zoned E2 Commercial Centre, that is otherwise identified as B3 Commercial Centre on the relevant zoning map, where a height of 60m applies, which achieves solar access to existing buildings and public area notwithstanding the exceedance and is consistent with the desired future character of the Bondi Junction Town Centres when assessed against the provision of Part E1 of the Waverley Development Control Plan 2012 (WDCP), and when the height of development for which consent has been granted along Oxford Street is understood in context, as depicted in Figure 5 of the height request.
3. Next, I accept the environmental planning grounds advanced by the written request are sufficient to justify the contravention of the standard because of that consistency with the desired future character of the Bondi Junction Town Centre, in a manner that does not impose adverse environmental impacts on Oxford Mall, or the public domain more broadly, and where the Applicant has offered to enter in to a Planning Agreement for the additional gross floor area, with a portion of the monetary contribution to be dedicated to Waverley's Affordable Housing Contribution Reserve Fund that is, of itself, in the public interest.
Finally, the written request asserts consistency with the objectives of the zone, at [20], because the additional two storeys that exceed the height standard allow for residential use, with provision of non-residential floor space at the lower levels comprising 882m2 of commercial floor space and 737m2 of retail floor space, that provide employment opportunities and activate the street frontages, retain and reflect existing heritage facades and, by virtue of the proposed Planning Agreement, encourages affordable housing.
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 standard and the objectives for development in the MU1 Mixed Use 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 objective for development within the MU1 Mixed Use 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 written request.
[4]
The floor space ratio standard is exceeded
According to the Floor Space Ratio Map at cl 4.4(2) of the WLEP, a floor space ratio (FSR) of 5:1 applies to the site, with objectives at cl 4.4(1) in the following terms:
(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.
The proposed development on the portion of the site known as 376-384 Oxford Street is for development with a FSR of 5.75:1. The development the subject of the 2016 Consent was approved with, and is proposed to retain, an FSR of 5.74:1.
As the proposal exceeds the FSR permitted on the site, the Applicant relies on a written request authored by GYDE dated June 2023 in accordance with cl 4.6 of the WLEP (the FSR request).
I am satisfied the FSR request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the WLEP for the reasons set out in the FSR request, summarised as follows:
1. Firstly, I accept compliance with the height standard is unreasonable or unnecessary in the circumstances of the case, because the proposed development complies with the objectives of the standard, at [30], notwithstanding the non-compliance. It achieves this by proposing a mix of residential, commercial and retail uses on a site in the Bondi Junction Town Centre where there are few opportunities to achieve such a mix, and where the correlation between height and density is demonstrated by the existing and emerging scale of development in the Bondi Junction Town Centre that is an expression of the desired future character of the locality as understood in terms set out in Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115, and by reference to Part E1 of the WDCP, including most relevantly the height and density of the development the subject of the 2016 Consent at 362-374 Oxford Street.
2. Likewise, objective (d) is achieved for the same reasons set out at [23(1)] in respect of preserving environmental amenity of neighbouring properties and the locality.
3. Next, I accept the environmental planning grounds advanced by the written request are sufficient to justify the contravention of the standard for reasons that are identical to those set out at [23(3)].
Finally, the written request asserts consistency with the objectives of the zone, at [20], for reasons that are identical to those at [24].
I note here that the Respondent is satisfied that the FSR 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 FSR standard and the objectives for development in the MU1 Mixed Use 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 FSR development standard under cl 4.4 is justified.
I am satisfied under cl 4.6(4) that the FSR 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 FSR development standard and the objectives for development within the MU1 Mixed Use 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 written request.
[5]
Waverley Local Environmental Plan 2012
The site contains an item listed for its local heritage significance in Sch 5 of the WLEP, known as the 'Imperial Building', at 356-374 Oxford Street. The frontages of that portion of the heritage item that is located on the subject site are proposed to be substantially retained. A Heritage Impact statement prepared by Weir Phillips dated June 2023 (Exhibit A, Tab 6) notes the Respondent has provided prior consent to development affecting the heritage item, and concludes that it, together with the proposed development for which consent is now sought, results in an outcome that is acceptable in heritage terms.
An agreed position paper prepared by the planning experts on behalf of the parties also states that amendments forming part of the amended DA, and subsequent amendments at [5]-[6] result in openings in the façade of a height and width that complements the heritage façade, and provides a more solid façade fronting Newland Street which adequately addresses the corner presentation.
Having considered the Heritage Impact Statement and the agreed position of the planning experts, I conclude the proposed development does not adversely effect the heritage significance of the 'Imperial Building', or any other item of heritage in the vicinity of the site, pursuant to cl 5.10 of the WLEP.
The site is not identified on the Acid Sulfate Soils Map at cl 6.1(2) of the WLEP, and so the provision has no effect.
On the basis of the Preliminary Geotechnical Assessment prepared by AssetGeoEnviro dated 6 March 2022, the Preliminary Site Investigation prepared by EIAustralia dated 25 March 2022, the Stormwater Drainage Plans prepared by GreenArrow listed in Condition 35 of the agreed conditions of consent and at [66(1)] and certain conditions of consent that give effect to the plans and other documents listed here, I have considered those matters at cl 6.2(3) of the WLEP dealing with earthworks which I regard to be adequately addressed.
Frontages to Oxford Street and Newland Street are identified on the Active Street frontages map at cl 6.5(2) of the WLEP, and I am satisfied that the architectural plans (Exhibit A, Tab 17) show a development with an active street frontage to those frontages, but for entrances and lobbies, access for fire services and vehicles, consistent with cl 6.5(4) of the WLEP.
The architectural plans, at DA-A-6050, demonstrate that no additional shadow impact results at 12 noon on 21 June in Oxford Street Mall, consistent with cl 6.7(2)(e) of the WLEP, and within the meaning of cl 6.7(3).
As the site is identified on the Key Sites Map, at cl 6.9(2)(a)(i) of the WLEP, and the proposal involves the erection of a new building that has a height greater than 15m, development consent is precluded unless the consent authority is satisfied the development exhibits design excellence, by regard being had to those matters at subcl(4)(a)-(d). The parties cite the following as evidence those matters to which regard must be had, has been had:
1. Addendum to Statement of Environmental Effects prepared by GYDE dated 7 June 2023 (Exhibit A, Tab 2), that sets out the nature of amendments that were subsequently adopted in the Amended DA.
2. The statement titled 'SEPP 65 Design Statement', authored by Mr Nicholas Hatzianagnostou dated 13 September 2023.
3. Amended Architectural plans prepared by SJB Architects dated 6 June 2023 (Exhibit A, Tab 17).
Having considered the amended plans and documents above, and assisted by the Position Paper authored by the Planning experts, I accept the matters at subcl (4)(a)-(d) provide sufficient basis to be satisfied that the proposed development exhibits design excellence, pursuant to cl 6.9(3) of the WLEP.
As the site is identified on the Key Sites Map, the amount of non-residential GFA of the building is to be the same as or greater than the total non-residential GFA of all buildings on the site on 1 January 2021, in accordance with cl 6.12(3) of the WLEP. The architectural plans demonstrate the quantum of non-residential GFA proposed by the development is 1,326m2, which exceeds the figure of 1,295m2 required to comply with the provision.
Clause 6.14(3) of the WLEP requires the Court to be satisfied that:
1. the development maximises opportunities, through design and integration, to provide waste and recycling storage and collection facilities (subcl(a)),
2. all waste and recycling storage and collection facilities are appropriately sized to meet the waste generated by the occupants (subcl (b)), and
3. the development provides for safe and equitable access to waste and recycling storage and collection facilities (subcl (c))
On the basis of the dual chute system, compaction and recycling methods described in the Operational Waste Management Plan prepared by Elephant's Foot Recycling Solutions dated 14 June 2023, I am satisfied of those matters set out at cl 6.14(3) of the WLEP.
I have considered the Stormwater Drainage plans prepared by GreenArrow (Exhibit A, Tab 18), and additional stormwater plans of the same author that provide further information in respect of the onsite detention, to which agreed conditions of consent also relate, at Condition 35. After considering the above, the Court can be satisfied that the proposal is designed to maximise the use of water permeable surfaces on the land, within a highly urbanised environment, this includes on-site stormwater retention for use as an alternative supply to mains water, and also avoids significant adverse impacts of stormwater runoff on adjoining properties in accordance with cl 6.15 of the WLEP.
[6]
State Environmental Planning Policy No 65 - Design quality of Residential Apartment Development
Where an application relates to residential apartment development, s 29 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) requires the application be accompanied by a statement by a qualified designer, defined at s 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement is required by s 29 of the EPA Regulation to verify matters that are similar to matters at cl 28(2)(b) and (c) of State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development (SEPP 65) that must be taken into consideration when determining a development application for residential apartment development.
While the statements prepared by Mr Nicholas Hatzianagnostou (Arch Reg No 9380), dated 16 March 2022 and 8 June 2023 depart, for whatever reason, from the requirements of s 29 of the EPA Regulation, the Court was later provided with a conforming statement that satisfies me that statement dated 13 September 2023 does now conform, and so permits the Court to take into proper consideration those matters at cl 28(2)(b) and (c) of SEPP 65.
Clause 30(2) of SEPP 65 requires the consent authority, or the Court on appeal, to be satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles, and the objectives specified in the Apartment Design Guide (ADG) for the relevant design criteria. On the basis of the architect's statement demonstrating how the objectives of Parts 3 and 4 of the ADG have been achieved, I am satisfied that adequate regard has been given to the ADG.
[7]
State Environmental Planning Policy (Transport and Infrastructure) 2021
The proposal comprises excavation within 25m of the Eastern Suburbs rail line in the vicinity of Bondi Junction railway station. As such, and consistent with s 2.99 of State Environmental Planning Policy (Transport and Infrastructure) 2021, Transport for NSW has provided General Terms of approval that form a part of the agreed conditions of consent at Condition 9.
[8]
State Environmental Planning Policy (Resilience and Hazards) 2021
Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 requires a consent authority to consider whether the land is contaminated and requires remediation. Having regard to the conclusions and recommendations contained in the Preliminary Site Investigation Report (PSI Report) prepared by EIAustralia dated 25 March 2022, I accept that the site is suitable for the purpose for which development is proposed. I also note the recommendation contained in Section 6 of the PSI Report are incorporated into the agreed conditions of consent.
[9]
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
The application is accompanied by a BASIX certificate (Cert No 1246821M_04, dated 9 June 2023) prepared by Vipac in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.
[10]
A Planning Agreement is proposed
As stated at [23]-[24], the Applicant has prepared a letter of offer proposing to enter into a Planning Agreement, pursuant to s 7.4 of the EPA Act dated 4 August 2023. The letter of offer specifies those matters to be specified in accordance with s 7.4(3) of the EPA Act, and provides for consistency with the Waverly Council Planning Agreement Policy 2014 (Amendment No 4).
The letter of offer is reflected in terms set out in Condition 15 of the agreed conditions of consent, and includes a monetary contribution that applies to the development the subject of the development application, which also comprises the development the subject of the 2016 Consent.
[11]
Public submissions
I note that the parties have provided the Court with evidence that public submissions have been considered in arriving at this agreement.
Firstly, I accept that the 2016 Consent, that was otherwise said to have expired, has not expired when the terms of s 4.53 of the EPA Act are understood in respect of the date the DA was lodged.
Secondly, I accept the Amended DA cited at [5] was notified between 9 June-23 June 2023, in response to which certain public submissions were received that have been considered.
[12]
Conclusion
As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
The Court notes that:
1. Waverley Council, as the relevant consent authority, has agreed, under clause 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA-157/2022 in accordance with the documents below:
Plan Name Drawing number Revision Date Prepared by
Amended Stormwater Plans
Cover Sheet & Site Survey STW-000 C 26/07/2023 Green Arrow
Ground Floor Stormwater Services STW-103 C 26/07/2023 Green Arrow
OSD Details STW-113 C 26/07/2023 Green Arrow
Reports
Updated VPA letter of offer dated 4 August 2023
Updated SEPP 65 Verification Statement prepared by SJB Architects dated September 2023
Updated BASIX Assessment Report and BASIX Certificate 1246821M_08 prepared by Vipac
[13]
The amended plans and other documents were filed with the Court on 13 September 2023.
[14]
Orders
The Court orders that:
1. The appeal is upheld.
2. Development consent is granted to Development Application DA-157/2022 for demolition of existing buildings and construction of a shop top housing development and basement carparking, including modification to approved shop top housing development DA-89/2016 and associated civil and landscaping works at 362-374 Oxford Street and 376-384 Oxford Street, Bondi Junction, subject to conditions of consent at Annexure A.
[15]
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: 04 October 2023