Castlereagh Ventures Pty Ltd v Woollahra Municipal Council

Proposed development

1. The application, as amended and before the Court under appeal, is for: 1. Demolition of existing structures; 2. Excavation of a basement (to RL -1.5m AHD), with two additional excavation inserts for the car stacker pits (to RL -3.45m AHD); and 3. Construction of a shop top housing development, with: 1. Basement level including car lift and turntable providing for eight stacked car spaces, two motorcycle spaces, 16 bicycle spaces, services and storage; 2. Two retail tenancies at the ground floor level, including a food/beverage tenancy, with the potential to divide into two additional spaces, as well as residential and commercial lobbies, services and facilities; 3. Two commercial tenancies with lobby, facilities and services at levels 1 and 2; and 4. Two residential apartments at level 3 and one residential apartment on level 4, with a rooftop terrace.

The remaining contentions

1. At the commencement of the hearing, the respondent identified the primary contentions remaining, after amendments of the application, and as described in the Amended SOFC (ASoFC, in Exhibit 1), as being:

• lack of necessity and/or reasonableness, as well as insufficient demonstration of the environmental planning grounds for the proposed breach in height and floor space ratio (FSR) development standards, as relied on in the cl 4.6 written requests that seek to vary the development standards;
• uncharacteristic presentation of the proposed building to the streetscape, and specifically presenting to the north side of Knox Street;
• not compatible with the desired future character for the Double Bay Centre;
• poor amenity outcomes for occupants of the proposed commercial space and for adjoining residents at 28-34 Cross Street, due to insufficient light and privacy, respectively, resulting from setbacks and architectural design of proposed levels 1 and 2;
• amenity impact to the public domain as viewed along Knox Street, resulting from visual intrusion of the proposed building, due to the building's dominance; and
• not in the public interest.

1. Based on the amendments made to the application, agreed draft conditions of consent (Exhibit 6) and expert evidence, the respondent considers that the other contentions, as raised in the ASoFC, are resolved.
2. With respect to the merit and jurisdictional consideration of the application, prior to the grant of Consent, the Court must form its own opinion of satisfaction based on the evidence, as explained by Preston CJ in Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 11.

Experts

1. The Court was provided with written and oral evidence from the following experts:

• Planning and urban design - Messrs Rohan Dickson, George Karavanas and Stephan McMahon. These listed experts rely on their joint expert report in Exhibit 5.

1. The Court was provided with written evidence from the following experts, who were not called to give oral submission:

• Traffic - Mr Jason Rudd and Ms Ever Fang. These listed experts rely on their joint expert report in Exhibit 4.

The Site

1. The site is an irregular pentagon shape, located within the Double Bay Commercial Centre, and forming part of the Knox Street and Knox Lane 'Precincts'.
2. The northeastern portion of the site is separated from Knox Lane by a small parcel of land owned by Council, known as Lot 5 DP 587115.
3. The site currently contains two commercial buildings, which are one and two stories.
4. The site fronts to Knox Lane, forming the northern boundary, for a length of 22.68 m, and Knox Street, forming the southern boundary and primary frontage for a length of 23.78 m. The total area of the site is 530.3m2.
5. The site is generally flat with a slight fall towards the west, along the northern boundary and to the south, along the western boundary.

Relevant Planning Controls

1. The requirements of s 4.15(1) of the EPA Act are a relevant consideration of the application for the Court to determine consent.
2. The application relies on excavation and will require dewatering of the basement. Referral to WaterNSW was made, pursuant to ss 90 and 91 of the Water Management Act 2000 (WM Act), and s 4.47 of the EPA Act. WaterNSW declined to consider the application for reasons of an apparent confusion relating to the status of the application's determination, as described in Exhibit 2. Therefore, no general terms of approval (GTA's) have been provided by WaterNSW, and the application was not considered by this authority. Pursuant to ss 8.14 and 4.47(5) of the EPA Act, the Court has the power to consider the application and determine the matters relevant to this integrated development.
3. The amended application is supported by geotechnical reports, prepared by Douglas and Partners, dated January 2023 (Exhibit FF), and eiaustralia, dated October 2023 (Exhibit R). I am satisfied by the proposed design of a 'tanked basement' to permanently limit groundwater ingress, as shown in Exhibit C, together with the proposed conditions of consent (Exhibit 6), that require relevant WM Act approvals and onsite monitoring during temporary dewatering of the excavation. The Court has been assured that no monitoring is required external to the site. The relevant requirements of the WM Act are considered sufficiently addressed.
4. Pursuant to s 23 of the EPA Reg, the applicant has satisfied the Court with the provision of written consent from all landowners relating to the amended application and the site. All proposed works are explained as being contained within the site boundaries, except for the removal of existing encroachments on the Council land at Lot 5. The relevant owners consent for the site is provided in Exhibit W and Council agrees to the proposed works on its land, as described in Exhibit 6.
5. Pursuant to s 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience), the site must be deemed capable of being made suitable for the proposed (commercial/residential) use, prior to the grant of consent. The amended application relies on:

• a Preliminary Site Investigation, prepared by Martens, dated December 2022;
• a letter by eiaustralia, dated 13 February 2024; and
• a Remediation Action Plan, prepared by eiaustralia, dated 25 March 2024.
• The Council confirms that the site has a continued history of (non-contaminating) commercial use. I am satisfied that the applicant has provided sufficient evidence, together with the proposed conditions of consent (Exhibit 6), to address the relevant requirements of s 4.6 of the SEPP Resilience.

1. The site is located within the Sydney Harbour Catchment, pursuant to Ch 6, Part 6.1, s 6.1(b) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity). Further to this, the site is identified as being on flood liable land, pursuant to Part 6.2, Div 1, s 6.5, and subject to consideration of Part 6.2, Div 2, s 6.6. The amended application relies on amended civil plans (in Exhibit O) that manage stormwater appropriately and protect the site (and occupants/residents) from flooding. Based on the amended application and proposed conditions of consent (Exhibit 6), the application satisfies the requirements of Part 6.2, Div 2 s 6.6, and the water quality in the catchment is sufficiently protected.
2. The proposed development requires consideration of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2021 (SEPP BASIX). The amended application relies on a BASIX Certificate, 1347267M_03, dated 20 October 2023, provided in Exhibit U, and referenced in Exhibit 6. The relevant requirements of SEPP BASIX are considered sufficiently addressed.
3. The site is situated over land zoned E1 Local Centre, pursuant to cl 2.3 of the Woollahra Local Environmental Plan 2014 (WLEP). The proposed development is permissible with consent in the E1 zone. The following objectives of the E1 zone, as described in cl 2.3, remain in contention: • To provide for development of a scale and type that is compatible with the amenity of the surrounding residential area. • To ensure development is of a height and scale that achieves the desired future character of the local centre.
4. The proposed development results in a numeric exceedance of the 14.7m height of buildings development standard, established in cl 4.3 of the WLEP. The amended application relies on a cl 4.6 written request (Exhibit E), to seek a variation of the building height standard up to a maximum of 17.4m.
5. The proposed development also results in an exceedance of the 2.5:1 FSR development standard, established in cl 4.4 of the WLEP. The proposed development seeks an FSR of 3.47:1, as shown on the amended plans (Exhibit C) and relies on a cl 4.6 written request (Exhibit F) to vary the standard.
6. The site is not listed as a heritage item nor within a defined heritage conservation area, pursuant to cl 5.10 of the WLEP. It was noted in evidence that an adjoining building at 21-25 Knox Street has been 'recommended' for heritage listing, by way of a planning proposal prepared by Council, although this is not yet gazetted (Exhibit 8). Based on the evidence of the experts, there is no assessed likely or potential adverse impact to this 'heritage' building resulting from the proposed development. No contention has been raised in the ASoFC with regards to heritage. I am satisfied that the requirements of cl 5.10 are sufficiently addressed by the proposed development.
7. The site is mapped as being part of a flood planning area, pursuant to cl 5.21 WLEP. The amended application relies on a Flood Assessment Report, prepared by Martens, dated December 2022, and amended stormwater drainage design, prepared by Harry and Hymas, dated 27 February 2024. I have assessed these documents and am satisfied that the proposed stormwater management relying on the location and design of float regulated flood gates at the entry points of the building, together with the proposed conditions of consent (Exhibit 6), sufficiently address the relevant requirements of cl 5.21.

Is the proposed development compatible with the desired future character of the Double Bay Centre, and specifically the Knox Street and Knox Land Precincts and/or cause amenity impacts?

1. The site is located within the Double Bay Centre, as described in the WDCP. During the hearing the Court was advised that Council had commenced a review of the planning provisions and controls that relate to the Double Bay Centre, which is a prelude to amending the WLEP and WDCP, through a future planning proposal. In line with this process, a Draft Planning and Urban Design Strategy for the Double Bay Centre was exhibited in March 2022, with the outcomes of the exhibition communicated on 30 October 2023. Following a Council meeting, an amended Draft Planning and Urban Design Strategy for the Double Bay Centre (hereafter the Draft Strategy) was endorsed by Council on 27 November 2023. A key recommendation of the Council meeting was that a planning proposal be prepared by Council. There is no update in evidence on the status of this planning proposal or amendments to the relevant planning instruments.
2. There remains dispute between the parties with regards to the weight that should be applied in consideration of planning changes described in the Draft Strategy, particularly in relation to building height, FSR, wall height and setbacks. It is agreed that these elements inform the desired, future character of the Double Bay Centre and its precincts.
3. Mr Galasso explained that the Draft Strategy demonstrates an intent by Council to better reflect the existing character that is consistent with the desired, future character of the Double Bay Centre as described in the Draft Strategy. The key elements of the Draft Strategy are consistent with the proposed development.
4. Mr Staunton however submits that in consideration of the application, limited weight should be applied to the Draft Strategy, being neither imminent nor certain within the context of jurisdictional requirements, and specifically s 4.15(1)(a)(ii) of the EPA Act.
5. Strategic documents in themselves are not mandatory considerations of the Court. They are not environmental planning instruments, as described in s 4.15(1)(a)(i) of the EPA Act. They do however provide relevancy in the consideration of the public interest, pursuant to s 4.15(1)(e) of the EPA Act, as they are developed in a public forum, and generally reflect the community's interests. They assist to inform planning instruments.
6. Having considered the status of the Draft Strategy, and the apparent lack of timetabling for a planning proposal, it is my opinion that the planning outcomes described in the Draft Strategy are neither 'certain' nor 'imminent' in amending the planning regime, to the extent that it informs the desired, future character of the Double Bay Centre, and its Precincts. The Draft Strategy, as it stands, does not necessary reflect the community interest, sufficient to address s 4.15(1)(e) of the EPA Act, and is not sufficiently advanced to inform a planning instrument, as described in s 4.15(1)(a)(ii).
7. I recognise that the proposed amendments described in the Draft Strategy would favour the applicant's proposal, particularly relating to the numeric requirement for building height and FSR. However, I also recognise that there is still a significant path to amending the relevant planning instruments, in consideration of s 4.15(1) of the EPA Act. Any changes to the planning regime still require public input, which could be contentious given the evidence of objectors.
8. There remains an uncertain timeframe to finalising the (Draft) Strategy and development of a planning proposal that could effect change to the existing planning regime. Therefore, it is my opinion that limited weight should be applied to the Draft Strategy in consideration of the application, and my focus remains on applying the current planning provisions, as described in the WLEP and WDCP to assess character.
9. The respondent contends that the proposed development does not appropriately address Knox Street, presenting with a height, bulk and scale not compatible with the desired, future character of the E1 zone, the Double Bay Centre, and specifically of the Knox Street/Lane Precincts.
10. With regards to the proposed building height, being a five storied development, the respondent contends that the development will be substantially higher than adjoining buildings along the north side of Knox Street. The proposed development will be at least two storeys above existing buildings on the north side of the Street and one storey above that envisaged for the future of the (north side of the) Knox Street precinct. With regards to the proposed FSR, the respondent contends that the proposed FSR is excessive.
11. Further to this, it is contended that the proposed development will have adverse amenity on the Double Bay Centre, due to visual intrusion when viewed along (the north side of) Knox Street. The proposed height, FSR and use of materials, namely the batons, contribute to a building that is dominant and uncharacteristic in the streetscape. In consideration of the proposed height and FSR, and potential for visual intrusion, the proposed development is not compatible with the desired, future character of the E1 zone and Double Bay Centre, as described in the WLEP and WDCP.
12. With regards to the proposed setback and building envelope, it is contended that proposed levels 1 and 2, forming part of the commercial area, are in (too) close proximity to the northern boundary of the site, adjacent to Knox Lane. The resulting effect is poor amenity for residents at 28-34 Cross Street, due to a loss of privacy. This residential building is noted to have balconies that front to the northern part of Knox Lane, adjacent to the site. The proposed commercial areas (on the site) are considered to have poor amenity, relating to ventilation and sunlight, due to the extensive use of batons on levels 1 and 2, that serve no practical purpose.
13. The applicant however considers that the proposed development is consistent with the height of existing and future (approved) developments, particularly when compared to Cross Street (adjacent to Knox Lane) and the south side of Knox Street, namely the Cosmopolitan building. It is considered that the FSR is not excessive considering the use of commercial space and that setbacks are sufficient, including to Knox Lane, thereby creating an appropriate building envelope.
14. The amenity of future occupants/residents of the site and to adjoining properties, including to residents at 28-34 Cross Street, is considered by the applicant as being reasonable. The architectural design, namely the use of batons, on the building façade is a signature feature, appropriate to the Double Bay Centre.

Relevant jurisdictional and planning considerations.

1. It is accepted that the NSW Department of Planning & Environment, Apartment Design Guide, 2015 (ADG) does not specifically apply in consideration of the application, because the development, as amended, is less than four apartments, pursuant to s 144(3)(c) of the State Environmental Planning Policy (Housing) 2021. The experts, however, draw from this Policy, with respect to deriving an appropriate separation distance between and to residential buildings.
2. It is noted that the objectives described in cl 2.3 (E1 zone), cl 4.3 (height) and cl 4.4 (FSR) of the WLEP are worded slightly different with respect to considering desired, future character. Clause 4.3 considers 'consistent with the desired future character of the neighbourhood', whereas cl 4.4 considers 'compatible with the desired future character of the area'. It is recognised that in a jurisdictional consideration, words matter, and have work to do. The experts agree, as described in their joint expert report, Exhibit 5, that the term 'neighbourhood' and 'area' are dimensionally similar with respect to this site. I adopt the approach of the experts and use these words interchangeably in my assessment of the desired future character.
3. Further to this, in consideration of 'consistency' and 'compatibility', I consider these terms are 'comparable' in meaning. Consistently, as explained by Dixon C in Forgall Pty Limited (ACN 074 213 933) v Greater Taree City Council [2014] NSWLEC 1132 at [61]: "The Court accepts that the term "consistent" in the LEP has its ordinary and natural meaning. It means "compatible or "capable of existing together in harmony": Dem Gillespies v Warringah Council [2002] NSWLEC224; [2002] 124 LGERA 147."
4. A relevant jurisdictional consideration of the Court when assessing the proposed development's compatibility with the desired, future character is derived from the E1 zone objectives, as described in cl 2.3 of the WLEP, below: Zone E1 Local Centre 1 Objectives of zone • To provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area. • To encourage investment in local commercial development that generates employment opportunities and economic growth. • To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council's strategic planning for residential development in the area. • To encourage business, retail, community and other non-residential land uses on the ground floor of buildings. • To provide for development of a scale and type that is compatible with the amenity of the surrounding residential area. • To ensure development is of a height and scale that achieves the desired future character of the local centre. • To encourage development that is compatible with the local centre's position in the centres hierarchy. • To ensure development provides diverse and active ground floor uses to contribute to vibrant and functional streets and public spaces. • To maximise public transport patronage and encourage walking and cycling. • To encourage the retention and planting of trees and other vegetation as part of development to minimise the urban heat island effect and to improve microclimates. [Bold emphasis added]
5. It is accepted that the E1 zone objectives 1, 2, 3, 4, 7, 8, 9 and 10 above are satisfied by the proposed development. The application proposes a combination of uses, including commercial, residential, and retail (at street level), with landscaping on the roof terrace. The experts, in their oral submission and joint expert reports, concur with this assessment. However, E1 zone objectives (5) and (6) (shown in bold) remain in contention and are considered below.
6. The objectives of cll 4.3 and 4.4 of the WLEP are also a relevant consideration of the Court in assessment of the application, as height and FSR inform the bulk and scale of the proposed building and its relationship to the streetscape, thereby informing the character assessment.
7. When assessing character, the Court is informed by Part D, Chapter D5 of the WDCP, and specifically Sections D5.4.6, D5.4.9, D5.5.3, D5.4.4 and D5.5.8. Relevant to the two Precincts that relate to the site, the envisaged desired, future character is described below: "D5.4.6 Knox Street Existing character Knox Street is located at the physical centre of Double Bay, and has high value retail premises. The street section is asymmetrical with the Cosmopolitan Centre having a higher form to the south. The lower built edge to the north is fragmented and varied, and some buildings suggest street level connections to other streets. The street has a pronounced curve which is articulated by the buildings on the north side and the lower levels of the Cosmopolitan Centre. Desired future character a) Retain the asymmetrical street section. b) Accentuate the curved street geometry of Knox Street by encouraging building to the street boundary and continuous awning cover on the south side. c) Retain street level connections to Knox Lane. d) Allow 4 storey built forms on 50% of each site frontage to Knox Lane. See Control Drawings for more information. D5.4.9 Knox Lane Existing character Knox Lane has an intimate scale which is partly due to the lane's changing alignment and related spatial enclosure. Physical and visual connection to other spaces at street level is primarily via through-site connections to Knox Street and courtyards to Cross Street. The spatial definition along the lane varies although most of the buildings are two to three storeys. Desired future character a) Retain and enhance the varied spatial definition of Knox Lane. b) Retain and enhance the honeycomb of arcades and courtyards which connect Knox Street to Cross Street. c) Encourage visual and physical connections between Knox and Cross Streets using: − arcaded and/or outdoor connections; − north oriented courtyards; and − arcade and courtyard creating buildings, which may vary from the control drawings in Section 5.5.8."
8. The WDCP controls that inform the preferred building envelope relevant to the site are summarised below. 1. Knox Street frontage: Street (level 1) and level 2, described in Section D5.5.3 and shown graphically in Section D5.4.6, enable 100% of the floor to be built on. The section in D5.4.6 suggests that levels 3 and above, should have an articulation area of 1.2m and 3.5m, respectively, i.e. a balcony, for developments on the north side facing Knox Street. 2. Knox Lane frontage: Street (level 1) and level 2, described in D5.5.3 and shown graphically in Section D5.4.9, enable 100% of the floor to be built on. The section in D5.4.9 suggests that levels 3 and above should have an articulation area of 6m, i.e. for a balcony, for developments fronting Knox Lane.
9. Further to this, as described in Section D5.5.4 of the WDCP, buildings up to level 4 can occupy 100% of the site adjacent to Knox Street, transitioning to 50% built floor area centrally, between the street frontages of Knox Street and Knox Lane. The upper most level fronting Knox Street requires a 3.5m setback. The site area fronting to Knox Lane is envisaged as having two levels with a roof terrace (up to 8 m building height), however may be further articulated up to level 4, as explained in Sections D5.6.3.2 and D5.4.7.
10. Section D5.5.8 of the WDCP, provides further clarity on the envisaged building articulation and setbacks that inform the desired, future character of the Double Bay Centre. It is understood that a zero front setback is envisaged for the ground floor (level 1) and 3.5m setback to the uppermost level (4 or 5). In reference to the WDCP: "The height of buildings edging streets and lanes is significant in this DCP. Prevalent four storey street definition must be provided to Knox Street and Cross Street. Two storey street definition is desirable to Knox Lane but may be interspersed with built form which creates arcades and courtyards between Cross Street and Knox Street, up to four storeys in height."
11. The desired, future character of the Double Bay Centre is further described in Section D5.6.3 of the WDCP, with Section D5.6.3.1 articulating preferred building envelopes, as described below: "5.6.3.1 Building envelopes Building envelopes illustrate the limits of permissible building height, depth and location and are described on the control drawings, Section 5.5.5 - 5.5.11. The envelopes allow development that maintains the environmental amenity of buildings and the public domain with regard to building bulk, overshadowing, access to natural light and ventilation and views. The building envelopes have been developed to foster a mix of uses in the centre, and to promote built form not reliant on artificial lighting, heating and ventilation. The deep ground and first floor building envelopes are suitable for retail and commercial uses, while the depths of envelopes for levels 3-5 are suitable for residential uses. The depth of residential buildings promoted in this chapter is based on the guidelines contained in the Residential Flat Design Code. The building envelopes have been considered in conjunction with FSR. The FSR controls in Woollahra LEP 2014 limit the amount of floor space in the centre. The building envelopes illustrate the permitted distribution of floor space in the centre. The permissible floor space for each site (determined by FSR) is generally 80% of the theoretical floor space achievable within the building envelopes. Uniform FSR facilitates development equity between sites; the envelopes allow flexibility in the ways the built form will be realised including the provision of arcades and through-site links. Objectives O1 Development should contribute to the desired future character of streetscapes with appropriate and consistent building forms. O2 Encourage courtyards and light wells at ground and first floor level of deep blocks to allow natural lighting and ventilation. O3 Enable the provision of through-site links and arcades. O4 Encourage a variety of interior volumes, i.e. split levels, double height spaces and arcades. Controls C1 Development must occur within the building envelopes shown on the Built Form Envelopes: Control Drawings, Section 5.5.5 - 5.5.11. C2 To create built form which is not reliant on artificial heating and cooling: a) habitable rooms should generally achieve a minimum floor to ceiling height of 2.7m; and b) level 3-5 building depth is limited to 15.6m including the articulation zones. When this is difficult to achieve in the residential component of a development, Council will consider variations to the overall building depth providing a minimum 80% of dwellings have windows that can be opened and/or doors in walls with differing orientations, to facilitate cross ventilation. C3 Deep building footprints are permitted at the ground and first floor only. C4 Building forms allow for: a) natural day lighting and ventilation; and b) privacy between dwellings or commercial premises."
12. In addition to the objectives and numeric height requirement described in cl 4.3 of the WLEP, the WDCP seeks consistency with this provision by achieving the height related elements described in Section D5.6.3.2, below: "5.6.3.2 Height The permissible height of development in the Double Bay Centre is set in Woollahra LEP 2014. The control drawings in Section 5.5.5 - 5.5.11 illustrate the desired number of storeys for each part of the centre. Building height has been determined by the need to preserve a pedestrian scale in the centre. Factors which play a role in achieving an appropriate scale relate to the width, orientation and character of streets and lanes. The envelopes generally establish three to four storey building heights along streets, and two storey building heights along lanes. Building above this height is required to be setback from the street or lane boundary to preserve amenity in the public domain. Short Street, Kiaora Lane and Knox Lane have the potential to be more like little streets than lanes being wider than other lanes in the centre, and may include four storey buildings along the lane frontage interspersed with two storey buildings, provided that at least 50% of lane frontage is two storeys or less. Objectives O1 Encourage buildings to achieve the heights along street and lane frontages described by the control drawings. O2 Provide floor to floor heights that provide amenity to building users and allow adaptable reuse of levels. Controls C1 To reinforce the built definition of streets, buildings should be well designed and achieve the maximum prescribed height along the primary street frontage. C2 To achieve a variety of roof forms the floor level of the uppermost habitable storey must be at least 3.5m below the maximum permissible building height. C3 The building (including lift tower machinery plant rooms and storage space) must be contained within the envelope height, with the following exclusions: chimneys, flues, masts, flagpoles communication devices, satellite dishes and antennae. C4 The minimum floor to floor heights for the Double Bay Centre comply with the table below."
13. The requirements for gross floor area (GFA) and FSR, described in cl 4.4 of the WLEP are relevant in the character assessment, because they inform the bulk and scale, and building form/envelope sought for the Double Bay Centre and its precincts. Section D5.6.3.1 of the WDCP explains that the building envelope is designed to have regard to protecting amenity. The relationship of the FSR to the building envelope is functional, being: "The building envelopes have been considered in conjunction with FSR. The FSR controls in Woollahra LEP 2014 limit the amount of floor space in the centre. The building envelopes illustrate the permitted distribution of floor space in the centre. The permissible floor space for each site (determined by FSR) is generally 80% of the theoretical floor space achievable within the building envelopes. Uniform FSR facilitates development equity between sites; the envelopes allow flexibility in the ways the built form will be realised including the provision of arcades and through-site links."
14. It is understood that the WDCP seeks to achieve an appropriate building articulation within the Double Bay Centre, by achieving the elements described in Section D5.6.3.3, below: "5.6.3.3 Building articulation Building articulation refers to the three-dimensional modelling of a building facade. The control drawings indicate the area for building articulation on a site-by-site basis (see Section 5.5.5 - 5.5.11). Building articulation along the street or laneway frontage establishes the relationship between a building and the street, through the use of entry porches, loggias, balconies, bay windows and the like. Building facades can be articulated to create a strong street address, and enrich the character of the street or laneway. Existing buildings along the south-eastern side of Bay Street in particular demonstrate a range of transition areas and modelled facades. Building articulation should respond to environmental conditions such as orientation, noise, breezes, privacy and views, through the use of appropriate sun shading devices, noise barriers, privacy screens, and the careful location of balconies, terraces and loggias. The street façade articulation zone shown on the control diagrams may be occupied by two types of space: External: − open balconies − void not occupied by built form − recessed balconies counted in proportion to the amount of the façade they are open to. Internal: − habitable rooms − bay windows − enclosed balconies − wintergardens. … Objectives O1 Promote buildings of articulated design and massing, with building facades that contribute to the character of the street, and provide useable external spaces. O2 Use building articulation to: a) generate high quality architectural resolution; b) provide private open space which addresses and overlooks streets and lanes; c) provide environmental amenity such as noise reduction and visual privacy through building articulation; d) provide thermal amenity within buildings such as screening and balconies for summer sunshading and maximising solar access in winter, appropriately scaled to their use and context; and e) encourage activity such as outdoor eating along street edges, to help animate the street. Controls C1 The following percentages of internal and external space should be incorporated with the composition of the building to achieve high quality architectural resolution at the street or laneway frontage. C2 The mix of internal and external space for articulation areas shown on the control drawings that do not front a street or laneway may be determined by the applicant. …"
15. Further to this, the WDCP seeks to achieve an appropriate building envelope for the Double Bay Centre through appropriate setbacks, as described in Section D5.6.3.4, below: "5.6.3.4 Setbacks Setbacks at street level can increase pedestrian amenity. Street level setbacks are most successful when they establish continuous and consistent building alignments. Setbacks on upper levels allow solar access to streets, and establish an appropriate relationship between building height and street width. The controls include a continuous or discontinuous building line that requires development to meet this alignment to reinforce or create a particular street character. For example the building lines and articulation zones will create lightly articulated buildings (New South Head Road) or highly articulated buildings with recessed balconies (Knox Street). Objectives O1 Encourage consistent building lines to provide coherent streetscapes. O2 Introduce new setbacks at street level in selected laneways to improve pedestrian amenity. O3 Where indicated provide street setbacks to the upper level of development to permit mid-winter sunlight. Controls C1 Building alignment must comply with the building lines shown on the Built Form Envelopes: Control Drawings, Section 5.5.5 - 5.5.11. C2 Front setbacks are identified as building lines on the control drawings, Section 5.5.5 - 5.5.11. Front setbacks must define a coherent alignment to the public domain. C3 Side setbacks must: a) protect privacy to adjoining buildings; and b) protect access to natural light and ventilation to adjoining buildings and residential areas. C4 Rear setbacks must: a) where required, accommodate vehicle access to the rear of lots, provide consolidated deep soil landscaped areas where blocks adjoin residential areas; and b) protect privacy and facilitate solar access to adjoining buildings and gardens. C5 Upper level street setbacks are identified on the control drawings, Section 5.5.5 - 5.5.11. Building articulation excluding floor area elements may be used between the setback line and the street boundary. Refer to Section 5.6.3.3 Building articulation."
16. The above elements of the WLEP and WDCP assist to inform the desired, future character assessment, and the achievement of the E1 zone objectives, described in cl 2.3 of the WLEP, as well as the objectives described cll 4.3 and 4.4.

Experts' submission

1. The amended application references the ground floor (retail), levels 1 (first floor) and 2 (second floor), which are designed for commercial use, and levels 3 (third floor) and 4 (fourth floor), with roof terrace which is designed for residential use. The proposed development is effectively a five-storey building, with two basement levels.
2. It is noted that the WDCP refers to the ground floor as 'level 1', and the first floor is 'level 2', etc. To avoid confusion, I adopt the same level/floor description relied on by the application (Exhibit C), making a relative comparison to floors/levels, as described in the WDCP.
3. The planners agree in their joint expert report (Exhibit 5), that the proposed development complies with the 'zero' front setback (WDCP) requirement for the ground floor (retail) level and for the lowest commercial level, fronting to Knox Street (front setback) and Knox Lane (rear setback). The zero side setbacks and site coverage of 100% are also agreed as being consistent with the WDCP. The proposed floor to floor heights, described in D5.6.3.2(C4) of the WDCP are achieved for the retail and commercial levels.
4. The proposed floor to floor heights described in D5.6.3.2 of the WDCP for residential use are exceeded by the proposed development for levels 3 and 4.
5. The experts agree that the proposed development does not comply with the building height of 14.7m, described in cl 4.3 of the WLEP or for the number of stories (maximum of four), as described in the WDCP. In comparison, the proposed building height is a maximum of 17.4m, and up to five storeys.
6. The experts agree that the proposed development does not comply with the rear (Knox Lane) and front (Knox Street) setbacks for levels 2, 3 and 4. The proposed rear setback is zero on level 2, a minimum of 1.54m on level 3 and 1.55m on level 4, with 0.73m setback to the roof terrace balustrading. The WDCP seeks a rear setback of 6m on these levels.
7. The proposed front setback is zero on level 2, and a minimum of 3.15m on level 3, 6.64m on level 4, with 6.62m to the roof terrace balustrading. The WDCP seeks a front setback of 1.2m for level 2 and 3.5m for level 3 and above.
8. The application relies on a Design Report (Exhibit M), prepared by Koichi Architects, dated 12 December 2023. It is recognised that this document is not required to address legislative requirements, however, assists in the assessment of the architectural design quality and compatibility with the desired, future character of the Double Bay Centre, pursuant to cl 2.3 of the WLEP and Chapter D5 of the WDCP.
9. Along the rear frontage (facing Knox Lane), proposed levels 1 and 2, being the commercial areas, and residential areas on levels 3 and 4, generally exceed a 12m separation distance from adjacent resident balconies at 28-34 Cross Street (a six-storey building). The experts agree that 12m is an appropriate proxy separation distance, consistent with the ADG. The experts consider that a separation distance at or greater than 12m between residential/commercial properties is reasonable to protect the amenity of adjoining residents, particularly their privacy.
10. The potential for privacy impact to resident balconies at 28-34 Cross Street remains in contention, particularly the relationship to the proposed commercial space (levels 1 and 2). It is contended that the fixed batons along the commercial area facade are not effective to protect the privacy of adjoining residents, due to their spacing, angle and positioning.
11. There is no dispute between the experts that the proposed separation distance across the frontage with Knox Street, towards the Cosmopolitan building is sufficient and it is agreed that there are no amenity (privacy) issues raised with regards to these residents.
12. It is agreed by the experts that the proposed residential units on the site will receive sufficient solar access and ventilation, as described in D5.6.6 of the WDCP. It is also agreed that, as described in Exhibit KK, there is no unreasonable solar impact to the public domain or to adjoining residents, due to the proposed development.
13. There remains a contention between the experts whether the commercial units will receive sufficient solar access or ventilation due to the full frontage placement of batons facing to Knox Street, being a south facing facade. The experts agree that there are no relevant numeric WDCP controls to quantify the (solar) impact for commercial space and therefore they rely on assessing the qualitative 'reasonableness' for solar provision to the commercial areas. There are no solar diagrams provided in evidence for this space.
14. The experts do not agree whether the proposed bulk and scale of the building results in a visual intrusion into the public domain, when viewed along Knox Street. The contention relates to the potential dominance of the new building compared with existing (and future) buildings along the north side, and whether this architectural design of building is consistent with the desired, future character of the Double Bay Centre.

Court assessment of amended application

1. The objectives and controls provided in the WLEP and the WDCP, as they relate to the site, provide the context and describe the vision to attaining the desired, future character of the Double Bay Centre, and of specific consideration, if it is related to the Knox Street and Knox Lane Precincts.
2. It is agreed that the relevant provisions of the WLEP and WDCP inform the desired, future character of the Double Bay Centre through height, FSR, setbacks, articulation, and architectural design provisions. In addition to consideration of the proposed development's compliance with these relevant provisions, I am informed by my observations made during the site view, conducted at the start of the hearing.
3. After consideration of the evidence, I am satisfied that the Cross Street Precinct, as described in Part D, Chapter D5, Section D5.4.7 of the WDCP, has a different existing and desired, future character to that envisaged for the Knox Street and Knox Lane Precincts. A comparison of developments in this Precinct, as suggested by the applicant, is not considered reasonable nor appropriate.
4. Further to this, the south side of Knox Street, which is dominated by the Cosmopolitan, a six-storey residential building, is sought to be treated differently from the north side of Knox Street, with regards to the desired, future character, as described in Sections D5.4.6 and D5.5.3 of the WDCP.
5. There is a specific intent for building form along the north side of Knox Street and south side of Knox Lane, which relate to the site. The building form envisaged has a lower form compared to that for Cross Street and the south side of Knox Street. Therefore, comparison with existing and approved developments located beyond the site relevant Precincts does not assist in my character assessment.
6. I accept that, as described by the applicant, there are numerous approved developments within the Cross Street Precinct, including the northern portion of the Knox Lane Precinct, that have exceeded the relevant WLEP and WDCP planning provisions for height, FSR and storeys. I do not put any significant weight to these forms, as discussed previously.
7. The proposed development delivers a hybrid compliance of the WDCP controls. I am satisfied that the setbacks proposed are reasonable and reflect the urban character of the relevant precincts within the Double Bay Centre. The proposed rear setback generally exceeds 12m to the leading edge of the adjacent (residential) building at 28-34 Cross Street. I find this is unlikely to cause amenity impacts by protecting the privacy of residents on the south side of Knox Lane. The proposed setbacks are sufficient and reasonable, appropriate for the building form fronting to Knox Street and Knox Lane.
8. The proposed development does not comply with the WLEP provisions that inform bulk and scale. The proposed maximum height and depth of the building is 17.7m and 25.9m, respectively, and up to five storeys. This exceeds the cl 4.3 WLEP height standard of 14.7 m, and the WDCP depth and storey controls, of 18-22m, with four storeys, respectively. The proposed maximum GFA is 1868 m2, which exceeds the cl 4.4 WLEP provision.
9. The proposed development will stand up to two storeys above adjoining existing development along the north side of Knox Street, and one storey above a recently approved development on this side of the street, at 3 Knox Street. The north side of Knox Street remains relatively underdeveloped with predominantly 1-3 storey buildings, including on the site. The south side of Knox Street is dominated by the Cosmopolitan.
10. With regards to consideration of the architectural design relative to the desired, future character of the Double Bay Centre, Section D5.6.3.6 of the WDCP explains: "Buildings in the Double Bay Centre represent a mixture of 20th century buildings that are of variable style and quality. High quality architectural resolution will improve living and working environments, contribute toward an improved built definition of the public domain, and can help to define a local identity".
11. I am satisfied that the proposed batons on the façade facing Knox Lane have a practical function, providing privacy to an adjoining residential development. This façade is also less dominant in the streetscape, not being a primary thoroughfare for pedestrian traffic, and mainly used as a service lane.
12. I am also satisfied that there are no adverse amenity impacts to adjoining residential developments (and not including the public domain), resulting from the height and depth of the proposed development. I have insufficient evidence to consider the potential loss of sunlight to the commercial space due to the extensive use of batons.
13. Whilst I accept that the proposed architectural expression of the building is a signature of the consulting Architect, I find that the result is a dominance of the proposed building due to it being over height and storeys, which is unsympathetically accentuated by the extensive use of batons across the façade of levels 1 and 2, particularly facing Knox Street. This is uncharacteristic in the streetscape and results in visual intrusion along Knox Street, affecting amenity of the public domain.
14. In consideration of the evidence, I am not satisfied that objectives O1 and O4 in Section D5.6.3.6 of the WDCP, are sufficiently addressed by the proposed development. The proposed development does not promote a high-quality architectural design compatible with the Double Bay Centre, nor creates a desirable and memorable environment. Further to this, the proposed development does not enhance the visual quality and identity of the Centre through a well-considered architectural design.
15. The extensive and excessive use of batons, which was described to the Court as being a 'signature architectural feature that reflects the wealth of the area', across the entire façade of the commercial levels (1 and 2) will be viewed in the streetscape as an overwhelmingly dominant feature. The creates a façade that dominates when viewed from the public domain and is considered incompatible with the existing and desired, future character of the Knox Street Precinct, and the Double Bay Centre.
16. The batons on the Knox Street facade do not serve any functional purpose and are not observed elsewhere in the streetscape. The sense of dominance created is not a characteristic feature within the Double Bay Centre.
17. I find that the proposed building creates a sense of visual intrusion in the public domain, and the extensive use of batons does not reflect a high-quality architectural design, as sought in Section D5.6.3 of the WDCP.
18. The proposed development is not consistent with the existing built, streetscape and village character for the Centre. The proposed building will dominate the streetscape and the public domain, with the batons adding unnecessary bulk and scale to a building that is already over numeric height and FSR requirements. The provisions of Section D5.3.2 of the WDCP are not achieved, specifically relating to (b) and (c).
19. The design of the window openings on levels 1 and 2 of the proposed building are excessively obscured by the batons and are inconsistent with Chapter 8 in Section D5.6.3.6 of the WDCP.
20. I find that the proposed development is not consistent with the desired, future character of the Double Bay Centre, and causes amenity impact to the (north side of the) Knox Street Precinct. I am not satisfied that the proposed development achieves the objectives of cl 4.3(1) of the WLEP, specifically:

• (a) to establish building heights that are consistent with the desired future character of the neighbourhood,
• (d) to minimise the impacts of new development on adjoining or nearby properties from … visual intrusion, and
• (e) to protect the amenity of the public domain by providing public views … surrounding areas.

1. I am not satisfied that the proposed development achieves the objectives of cl 4.4(1)(b) of the WLEP for the E1 zone, specifically "to ensure that buildings are compatible with the desired future character of the area in terms of bulk and scale".
2. Having regard to the objectives of the E1 zone, I find that the proposed development does not achieve objectives (5) and (6) in cl 2.3 of the WLEP. The proposed development is not of an architectural design that protects the (visual) amenity of the surrounding residential area, causing visual intrusion in the public domain. The proposed development is not of a height and scale that achieves the desired, future character of the local centre, being considerably higher than that of surrounding developments (and that envisaged) along the north side of Knox Street, exceeding the relevant WLEP and WDCP height and storey provisions. The extensive use of batons on the façade exacerbates rather than complements the building in the streetscape, and results in a building that presents with excessive bulk and scale. This will dominate the north side of Knox Street. The proposed development does not compliment the surrounding residential area.
3. I have appropriately considered the bulk and scale of the proposed building and its relationship to the streetscape and public domain. I am not satisfied that the proposed development will result in a reasonable transition to existing and future, adjoining developments along the north side of Knox Street, and will likely adversely impact the visual amenity when viewed from the public domain. The proposed building will dominate the streetscape due to its height, storeys and architectural design.
4. Having considered the amended application and evidence, I find that the proposed development does not achieve the relevant requirements established in s 4.15(1)(a)(i) and (iii) of the EPA Act, causes adverse amenity by visual intrusion on the public domain, pursuant to s 4.15(1)(b), and is not suitable for the site, pursuant to s 4.15(c). Applying flexibility to the relevant WDCP provisions, pursuant to s 4.15(3A) of the EPA Act does not result in a reasonable alternative solution to achieving the objects of these standards.
5. As I find the objectives (5) and (6) of the E1 zone in cl 2.3 and the objectives of cll 4.3 and 4.4 are not achieved, I am therefore not required to consider the request to vary the breach in height of buildings and FSR development standards.

Have the resident objections been considered?

1. The residents were given the opportunity during periods of notification of the original and amended application to provide written submissions, pursuant to s 4.15(1)(a)(ii) of the EPA Act, and consistent with the Woollahra Community Development Participation Plan 2023 and WDCP. The written submissions received have been provided in evidence and considered by the Court.
2. At the start of the hearing four residents or their representative provided oral submissions, which are summarised in notes described in Exhibit 7 and are also considered by the Court.
3. I am satisfied that residents have had sufficient opportunity to assess the (amended) application and to address the Court, pursuant to s 4.15(1)(a)(ii) and (d) of the EPA Act. I am also satisfied that the issues raised by the objectors, have been appropriately considered.
4. My findings above are consistent with and reinforced by the many objections made by residents of the Double Bay Centre. The sense of dominance and incompatibility of the bulk and scale of the proposed development in the streetscape and public domain were consistent themes in their objections.
5. My consideration of the amenity impacts (specifically visual intrusion) and compatibility with desired future character of the local centre, having regard to the objectives of the E1 zone, are explained in the judgment above.

Is the proposed development in the public interest?

1. The Court's consideration of public interest relating to the application is a jurisdictional requirement, pursuant to s 4.15(1)(e) of the EPA Act. Consideration of public interest assesses broadly the serving of public good, upholding of justice and protecting individual rights.
2. I find that the proposed development is not in the public interest, as it is not characteristic for the Double Bay Centre, and does not protect the wellbeing of society, causing adverse amenity impacts by visual intrusion in the public domain. The proposed development does not sufficiently address the requirements of s 4.15(1)(a) and (e) of the EPA Act.

Costs

1. The respondent seeks for the Court to consider its costs associated with amendments made to the application during the proceedings, pursuant to s 8.15(3) of the EPA Act, below: (3) If the Court on an appeal by an applicant under this Division allows the applicant to file an amended application for development consent (other than to make a minor amendment), the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent. This subsection does not apply to proceedings to which section 34AA of the Land and Environment Court Act 1979 applies.
2. In response to the amendments granted leave to rely on at the start of the hearing (related to NoM of 5 April 2024), the respondent agreed that some issues in contention were addressed. However, the amendments required further and unexpected assessment cost associated with Council's experts.
3. I am satisfied that the amendments granted to the application on 9 April 2024 (for NoM of 5 April 2024), were not 'minor', substantially changed the application, and caused the respondent's experts to spend additional and unexpected time to review and report.
4. I find that an order for costs thrown away, based on the amendments granted is consistent with s 8.15(3) of the EPA Act.

Conclusion

1. The amended application has been assessed, based on the evidence before the Court, including the (amended) supporting plans, documents, agreed conditions of consent, expert reports and submission from a resident.
2. In determining to refuse the grant of consent to this amended application, I find that the proposed development does not satisfy the requirements of the relevant regulatory instruments, namely the EPA Act and the WLEP, as well as the WDCP. The reasons for my determination, as explained above, are principally because the proposed development is not compatible with the desired, future (or existing) character of the local area (Double Bay Centre and Knox Street Precinct), causes adverse (visual) amenity impact to the public domain, does not exhibit high-quality architectural design, and is not in the public interest.
3. I therefore refuse consent for Development Application DA3/2023/1, pursuant to s 4.16(1)(b) of the EPA Act.

Orders

1. The orders of the Court are: 1. The amended written request under clause 4.6 of the Woollahra Local Environmental Plan 2014, prepared by gsa planning, dated March 2024, seeking a variation to the development standard for height of buildings under clause 4.3, is dismissed. 2. The amended written request under clause 4.6 of the Woollahra Local Environmental Plan 2014, prepared by gsa planning, dated March 2024, seeking a variation to the development standard for floor space ratio under clause 4.4, is dismissed. 3. The appeal is dismissed. 4. Development Application DA3/2023/1 by Woollahra Municipal Council (the Council), which seeks demolition of existing structures and construction of, as amended, a five-storey shop top housing development with basement parking, landscaping and associated civil works on Lot 6 Deposited Plan (DP) 587115 and Lot 2 DP 514808, also known as 27-29 and 31-37 Knox Street, Double Bay is refused. 5. The applicant is to pay the respondents costs thrown away as a result of the amendments of the application for development consent, granted leave on 9 April 2024, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979. 6. The exhibits are returned. Sarah Bish Commissioner of the Court

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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: 25 June 2024