Clutch Bondi Junction Pty Ltd v Waverley Council

Issues

1. Despite the amendments and provision of additional information, the Respondent maintains the modification application warrants refusal on the basis that: 1. it does not satisfy the test of 'substantially the same development' under s 4.56(1)(a) of the EPA Act. 2. it will result in a building that is excessive in height and fails to comply with the maximum height development standard at cl 4.32 of the Waverley Local Environmental Plan 2012 (LEP 2012). Further, the development has an inappropriate bulk and scale when viewed from Bronte Road which is not compatible with the desired future character of the locality. 3. it will result in a building that is excessive in bulk and scale and fails to comply with the floor space ratio (FSR) standard at cl 4.4 of LEP 2012. 4. It has unsatisfactory amenity impacts for existing and likely future neighbouring properties. 5. It does not exhibit design excellence in accordance with cl 6.9 of LEP 2012.
2. I accept the submission of Mr Staunton that the provisions of cll 4.3(2) (Maximum Building Height), 4.4(2) (FSR) and 6.9(3) (Design Excellence) in LEP 2012, do not act as preconditions to the grant of consent to the modification application. This finding is consistent with the findings of Pepper J in SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65 at [33]-[35]. I am satisfied that nothing in LEP 2012 obliges, in mandatory terms, the consideration of these provisions in the context of a modification application, beyond their consideration as a relevant matter pursuant to s 4.56(1A) of the EPA Act.

Approved Development

1. The subject site has been the subject of a number of development consents. These are detailed below.
2. Relevant to the statutory test at s 4.56(1)(a) of the EPA Act, namely whether the development proposed in the modification application is substantially the same development as that approved under the development consent, the Approved Development is a four to five storey mixed use development with the following characteristics:

• the height of building standard of 15m is breached in the western portion of the fourth floor;
• a floor space ratio (FSR) of 2.06:1;
• 19 residential apartments: the first floor with four of 1-bedroom units and one 2-bedroom unit and a void over the outdoor seating area below. The second and third floors each with five of 1-bedroom units and one 2-bedroom unit. Fourth floor with two of 2-bedroom units: Bureau SRH Pty Ltd v Waverley Council (No. 2) [2017] NSWLEC 1383 at [5].
• Basement parking with 12 spaces;
• Ground floor retail tenancy with outdoor seating area fronting Bronte Road. Rear access to the basement and three at grade parking spaces;
• The Approved Development had a substantial void over the outdoor seating area. (Exhibit 1)

1. I accept the submission of Mr Eastman that the correct datum for the comparison required by s 4.56(1) of the EPA Act is the Approved Development which was the subject of proceedings: Bureau SRH Pty Ltd v Waverley Council [2016] NSWLEC 1404 ('Bureau SRH v Waverley').

Second Approved Development

1. Subsequently, the Applicant applied for a second development consent to carry out alterations to the Approved Development, instead of applying to modify the Approved Development for the mixed-use building. That path is available to the Applicant: see Waverley Council v Hairis Architects (2002) 123 LGERA 100; [2002] NSWLEC 180 and Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780.
2. Development Application (DA 512/2016) (the second approved development) sought approval for: the addition of car stackers in the basement, an additional ground floor tenancy, changes to loading and service areas, an additional apartment on the first floor, the addition of two apartments on the fourth floor and an amended roof. The Court approved that Development Application, subject to the deletion of two units on the fourth floor: Bureau SRH Pty Ltd v Waverley Council (No 2) [2017] NSWLEC 1383. This second approved development is not sought to be modified by the current modification application.

The Modification Application

1. In this matter, the Statement of Environmental Effects (SEE) and the architectural plans for the Modification Application conglomerate the resulting development of the two development consents, namely the Approved Development and the second approved development. This is, in my view, firstly a misrepresentation of the application and secondly in conflict with the description of the scope of the modification sought by the Modification Application. My reasoning is detailed in the following.
2. The scope of the Modification Application, as described on the application form, states: "Proposed addition of one 3-bedroom unit on Level 4, minor internal layout changes, minor façade changes, removal of one car stacker in the basement." (Exhibit A)
3. This description was amended by the Applicant as referred to in [3], but relevantly I note that the consent to which the modification applies does not contain car stackers in the basement, that element was approved in the second approved development (see par [13]). Given the Modification Application does not relate to the second approved development, this element cannot be modified by this Modification Application.
4. The SEE describes the scope of the Modification Application as follows: … "This application seeks to modify Condition A1(a) of the approved shop top housing development at Nos. 110-116 Bronte Road, Bondi Junction (DA-419/2015). The modification, designed by Bureau SRH Pty Limited, is to provide an additional unit to square off the upper level of the approved building. The new unit would join to already approved units on the same level, which were approved under a separate DA (512/2016) for alterations and additions. Minor internal modifications are also proposed on the lower levels as well as new rounded steps from the public domain on the corner of Bronte Road and Porter Street. … This Section 4.56 Modification Application relates to the original DA approval (DA-419/2015), however includes the floor space, internal configuration and upper floor units approved in the second application (DA-512/2016)." (Exhibit A, emphasis added)
5. In my view, this statement in the SEE is incorrect. There is a distinction between the development able to be lawfully carried out on the site (that approved by either modifications to the Approved development, or further development consent) and the development which is being sought to be modified pursuant to s 4.56(1) of the EPA Act. The highlighted section in the SEE conflates the two.
6. Further, the architectural plans, proposed to be substituted in Condition A1(a) of the Approved Development, include the works of the second approved development, although shaded and marked 'Not part of s 4.55 application'. This is incorrect in two ways: firstly, the second approved development is not the application being modified and should not, in my view, be the base drawing of the plan supporting the Modification Application, and secondly the modification application is made pursuant to s 4.56 of the EPA Act, not s 4.55 as noted on the drawings.
7. If the outcome of my assessment had been that the Modification Application warranted approval, a direction to correct the application documentation would have been required. As it stands the Modification Application does not comply with Sch 1, Pt 1 cll 3, 4 of the Regulation for the preceding reasons.

The site and locality

1. The site is located on the northern corner of Bronte Road and Porter Street, with rear lane access from Adams Lane. The site is within the B4- Mixed use zone under the LEP 2012 and is also nominated as a 'Key site' under cl 6.9 Design Excellence of LEP 2012.
2. The surrounding development along Bronte Road is primarily retail, commercial and mixed use which is characterised by a mix of large dwelling houses, shop top housing developments and residential flat buildings. There is residential development behind the site on the opposite side of the laneway.
3. The site is not within a heritage conservation area; however, it is proximate to the Waverley Telephone Exchange which is a locally listed heritage item under LEP 2012. The Waverley Telephone Exchange is a tall and imposing structure in the streetscape.

Expert evidence

1. In these proceedings the Court was assisted by planning evidence from Mr George Karavanas, town planner for the Applicant and Mr Gerard Turisi, town planner for the Respondent. The town planning experts joint conferenced with the urban design experts: Mr Rohan Dickson for the Applicant and Mr Timothy Williams for the Respondent. The experts prepared a joint report that was tendered in the proceedings as Exhibit 3. The experts were also called for cross examination.

Are the requirements of s 4.56(1)(a) of the EPA Act met?

1. The modification application is made pursuant to s 4.56(1)(a) of the EPA Act (Exhibit A). That provision contains conditions on the exercise of the power as detailed below: (1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if - (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has notified the application in accordance with - (i) the regulations, if the regulations so require, and (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. (1A) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
2. The Respondent contends that the precondition at s 4.56(1) (a) of the EPA Act is not met. that is they argue that the development as proposed by the Modification Application is not substantially the same development as the Approved Development. As the satisfaction of the terms is s 4.56 of the EPA Act are a precondition to consent, they are addressed in seriatim below.

Substantially the same

1. In order to grant consent to the modification application, the consent authority must be satisfied that the proposed development 'is substantially the same development' as the originally approved development: s 4.55(2)(a) of the EPA Act. As described by Preston CJ in Arrage v Inner West Council [2019] NSW LEC 85 ('Arrage') at [18], the process of assessing such satisfaction is focussed on the language of the statute, which is extracted below: 4.56 Modification by consent authorities of consents granted by the Court (cf previous s 96AA) (1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if - (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and…
2. The statutory test of 'substantially the same' at s 4.56(1) of the EPA Act focusses on "the development for which consent was originally granted". In these proceedings that is only the development contained in the Approved Development as that is the consent which is sought to be modified. The provision does not encompass a test of 'substantially the same' against 'developments' for which consent has been granted. The second approved development is not of relevance to the assessment.
3. In contrast to the above analysis, Mr Turisi undertook an analysis comparing the conglomerate of the two development consents, namely the Approved Development and the second approved development to the development as proposed by the Modification Application. So much is clear from his acceptance of the qualitative assessment detailed by the Respondent in their Statement of Facts and Contentions (Exhibit A), which nominates that the comparator 'approved development' as having a total of 20 units. I note that this error is repeated in the quantitative assessment contained in the Applicant's SEE, which I have reproduced below.
4. By reference to par [10] it is apparent that the comparison contained in the penultimate column of the extracted table is incorrect as the Approved Development contains 19 units, the additional unit having been approved under the second approved development. On this basis I have given little weight to the quantitative assessment contained in the Applicant's SEE or Mr Turisi's quantitative assessment. (Exhibit B)
5. In his qualitative comparison, Mr Turisi's principal concern relates to the visibility of the additional unit proposed by the Modification Application. After a review of the Modification Application, Mr Turisi concludes that the photomontages provided by the Applicant demonstrate that the fifth storey in the Modification Application will be clearly visible in Bronte Road, whereas the Approved Development would not. His reasoning is that the substantial (63%) reduction in the front setback to Bronte Road reinforces a larger scale building than that approved and results in the form being visible in the streetscape. Mr Turisi concludes that the Modification Application does not meet the test of substantially the same development in s 4.56(1) of the EPA Act. (Exhibit 4)
6. In the alternative, Mr Karavanas argues that the proposed Modification Application comprises a development which is qualitatively and quantitatively substantially the same development as the Approved Development. (Exhibit 4) His reasoning is extracted below: "The proposal continues to comprise a five storey shop-top housing development above a basement level. The proposed modifications are entirely contained within the approved building footprint and relate only to the upper level, where the addition of a two bedroom unit will better match and align with the approved built form below. The retail component of the building will not be modified, and the additional unit will match the design and detailing of the approved units. From a qualitative point of view, while the proposal results in an additional apartment, it is located on a level where there are another two apartments and comprises a height that matches the topmost RL of those approved apartments on this level. The proposal maintains the top of building RL of 99.20 and does not change the lift overrun of 99.55. The setbacks in levels 1 to 4 remain the same with a change only to the upper level setback to the west. Indeed, there is no change to levels 1 to 4 of the approved building." (Exhibit 4)
7. In response to Mr Turisi's evidence, Mr Karavanas argues that the proposed apartment is well setback from the alignment of the approved development and will not be visually prominent from Bronte Road. Relying on the photo montages produced by the Applicant, Mr Karavanas concludes that the development, as modified by the Modification Application will retain the appearance of a four storey street wall when viewed from Bronte Street, and will be barely visible from Porter Street. (Exhibit 4)
8. Mr Karavanas concludes that the test of being substantially the same development is met by the Modification Application: s 4.56 (1) of the EPA Act.

Findings

1. In undertaking the comparison between the Approved Development and the development as proposed to be modified by the Modification Application, I am satisfied that the test at s 4.56(1) of the EPA Act is met. I conclude that the development as proposed to be modified by the Modification Application is substantially the same development as the development for which the consent was originally granted (the Approved Development). My reasoning follows.
2. The term 'development' is defined at s 1.5 of the EPA Act as follows: 1.5 Meaning of "development" (cf previous s 4) (1) For the purposes of this Act, development is any of the following - (a) the use of land, (b) the subdivision of land, (c) the erection of a building, (d) the carrying out of a work, (e) the demolition of a building or work, (f) any other act, matter or thing that may be controlled by an environmental planning instrument. (2) However, development does not include any act, matter or thing excluded by the regulations (either generally for the purposes of this Act or only for the purposes of specified provisions of this Act). (3) For the purposes of this Act, the carrying out of development is the doing of the acts, matters or things referred to in subsection (1).
3. As detailed by Preston CJ in Arrage at [24], comparison required by s 4.56(1) of the EPA Act is between two developments: the development as modified and the development as originally approved: see also Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [16] ('Scrap Realty'). The first appropriate referent for the comparison required by s 4.56(1) of the EPA Act is the Approved Development. That development consent, when read with the approved plans and documentation (listed at condition 1), approved the development summarised at par [10].
4. A BASIX certificate, SEE and a written request to vary the height standard formed part of the consent which was granted subject to conditions.
5. The development approved under the Approved Development was 'demolition' and 'shop top housing' with the ground floor retail tenancy approved as 'food and drink premises'. Both of these uses are permitted with consent in the B4 Mixed Use zone under LEP 2012. The Modification Application does not seek to modify these uses.
6. The second referent point for the test of 'substantially the same' at s 4.56 (1) of the EPA Act, is the development as proposed to be modified by the Modification Application: Arrage at [24] and Scrap Realty at [16]. The specific development sought by the Modification Application, as amended by the Applicant in the proceedings, is summarised at par [1], but essentially the Modification Application seeks a single additional 2-bedroom apartment on the fifth floor of the development. I include below a summary of the comparative differences between the development as approved in the Approved Development and as proposed to be modified by the Modification Application. Quantitative Differences:

• An additional 85m² residential unit with 118m² of private open space
• The replacement of a roof slab at RL 96.00 (over the third floor) with a roof slab at RL 99.20 (over the fourth floor).
• The addition of a 600mm wide awning on the fourth floor.
• A reduction in the front setback to Bronte Street on the fourth floor from 14.2m in the Approved Development to 4.2m in the development as modified by the Modification Application. Qualitative Differences:
• When the development is viewed from the south, the proposed development, as modified by the Modification Application, no longer steps with the site topography or the maximum height plane. Instead the building fronting Porter Street has a near symmetrical façade with units on both sides of a central lift core.
• The energy rating for the performance of the development has changed from 5.5 stars (Approved Development) to 6.2 stars as proposed to be modified by the Modification Application.
• The most significant qualitative change is the appearance of the building, and its streetscape relationship when viewed from Bronte Road. The Approved Development had a street wall height of RL 96.00 with the fourth-floor setback of some 14.2m. Given this setback, the upper floor units were not visible in the Bronte Road streetscape, giving the building a four-storey character. The development as proposed to be modified by the Modification Application seeks an additional unit on the fourth floor at a 4.2m setback that will be visible and part of the streetscape of Bronte Road.

1. Comparing the quantitative and qualitative aspects of the development that are the subject of the Approved Development and the development that is the subject of the Modification Application, I am satisfied that they have the same essential elements and that the Modification Application does not involve any radical transformation of the development. I am satisfied that the test at s 4.56(1)(a) of the EPA Act is met, namely that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted, and before that consent as originally granted was modified (if at all).
2. The first precondition of s 4.56(1)(a) of the EPA Act is met.

Notification of the Modification Application

1. Section 4.56(1)(b) and (c) of the EPA Act contain two separate requirements to be satisfied in relation to the notification of modification applications. They are: A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if - … (b) it has notified the application in accordance with - (i) the regulations, if the regulations so require, and (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and
2. In relation to the requirement at subcl (b), the modification application was notified for 14 days from 27 October 2020. (Exhibit 1) During the notification period one submission was received. The submission raised concern that the modification would result in the proposed development causing a loss of sunlight to and views from the objector's property.
3. As noted at [3], the Court made orders on 20 August 2021 in relation to the amended Modification Application. In part, those orders directed that the Modification Application be uploaded to the NSW Planning Portal within five days. During the hearing the parties confirmed that the order had been complied with.
4. Consistent with Div 2.6 and Sch 1 of the EPA Act, the Respondent has prepared a Community Participation Plan (CPP) which states that the requirement for notification of modification applications is 14 days. According to the CPP, renotification of amended applications is to be determined by Council at the time of re-exhibition, subject to the nature, scale and likely impact of the amended proposal. The Regulation does not contain specific requirements for the notification of modification applications of this type. Given the preceding, I am satisfied that the requirements for notification of the Modification Application in s 4.56(1)(b) of the EPA Act have been met.
5. Despite the satisfaction of s 4.56(1)(c) not being raised in the issues in contention between the parties, it is necessary for the Court, in exercising the functions of the consent authority on appeal, to be satisfied that the precondition is met: HP Subsidiary Pty Ltd v City of Parramatta [2020] NSWLEC 135 at [16].
6. Recognising this the Court wrote to the parties in late November requesting that the parties direct the Court to where, in the materials before the Court, details of notification meeting the requirements of subs (c) could be located. In a joint correspondence to the Court, the parties provided the following submission: "We refer to the Court's correspondence to the parties dated 23 November 2021. We note that the Court has requested the parties to identify where, in the material before the Court, details are located regarded notification meeting the requirements of s4.56(1)(c) of the Environmental Planning and Assessment Act 1979 ("EP&A Act"). A direct answer to the question asked is that details regarding notification meeting the requirements of s4.56(1)(c) of the EP&A Act are not clear on the material currently before the Court because details regarding submissions received in response to the notification of Development Application DA-419/2015 have not been provided (see below). However, I am instructed that the Council has complied with the requirements of s4.56(1)(c) of the EP&A Act. I am instructed that the Council received four (4) submissions in response to the notification of Development Application DA-419/2015 from the following persons: By reference to the Respondent's Bundle of Documents filed 11 October 2021 (Exhibit 2 in the proceedings) ("RBD"), the Court can be satisfied that the Council notified (or a reasonable attempt was made to notify) these residents of the subject modification application. In that regard, we draw the Court's attention to the following pages of the RBD: 1. Objector 1 - page 10 and page 16 of RBD. 2. Objector 2 - page 10 and page 17 of RBD. 3. Objector 3 - page 10 and page 14 of RBD. 4. Objector 4 - page 9 and page 13 of RBD." (NB: Personal details of submissions have been annonymised by the Court)
7. On the basis of the preceding, I am satisfied that the requirements at subs (c) of s 4.56 of the EPA Act have been met.
8. I find that the preconditions at s 4.56 (1)(b) and (c) of the EPA Act are met.

Consideration of Public Submissions

1. Section 4.56(1)(d) of the EPA Act requires the consent authority to give consideration to the submissions made concerning the proposed modification.
2. The submissions received by the Respondent are included in Exhibit 2. The following issues are raised: 1. That the Modification Application does not comply with the height controls for the zone with the additional unit being almost a full floor over the prescribed height. This has the effect of increasing the number of units that will be realised in the locality. Overdevelopment of the site will exacerbate the impact of development on existing infrastructure. 2. The Modification Application will result in overshadowing, privacy and noise pollution for neighbouring properties. 3. The approval of the Modification Application will have a precedent effect and 'open the door' for other redevelopments to exceed the height limit. 4. The logic of the developer relying on the site as a 'gateway to the precinct centre of Bondi Junction' is a misconception. The submission argues that, in contrast to 122 Bronte Road, the subject site is not a significant intersection and is adjacent a local street leading to low rise residential properties. 5. The Modification Application contains the additional units that were refused previously.
3. The issues raised in submissions were the subject of expert town planning evidence. The experts agree that the proposal breaches the maximum height control in LEP 2012. The experts disagree on the three principle issues raised in submissions, namely: 1. The role of the planning controls in defining the desired future character (DFC) of the locality and whether the development proposed by the Modification Application is compatible with that DFC. 2. The weight to be given to the recent rezoning of the 122 Bronte Road and the fact that the subject site is a corner site. 3. Whether the Modification Application results in unreasonable amenity impacts.
4. The respective views of the planning and urban design experts are summarised in the following.
5. Mr Turisi argues that the controls in LEP 2012 and the Waverley Development Control Plan 2012 (WDCP) determine the DFC of the locality. He notes that "(r)ecently approved development along Bronte Road between Ebley and Birrel Streets are 4 storeys reinforcing the desired future character of the area and a consistent application of Council's controls". (Exhibit 4)
6. In relation to the existing character of the locality, Mr Turisi notes that developments comprising of two and three storeys predominate. In relation to DFC, he concludes that "(t)he reading of the fifth storey from Bronte Road will erode Council's urban design objective, which is to strengthen the urban form with consistent heights along the street as identified in WDCP, that is, for four storey built form". (Exhibit 4) In contrast, Mr Turisi notes that the Approved Development respects the objectives of the planning controls "as the building reads as four storeys and steps up [to the rear] due to the fall of the land". (Exhibit 4)
7. Mr Williams, agreeing with Mr Turisi, argues that both LEP 2012 and WDCP identify the subject site, and this section of Bronte Road, as being four storey with a maximum building height of 15m. He notes that, when read together, the objectives of 1.13, Part E: Bondi Junction of WDCP and control (a) and (c) identify a consistent four storey development as the DFC for the locality.
8. These controls are reproduced below: "1.13 Number of Storeys Objectives (a) To ensure that internal amenity is not compromised to maximise development potential. (b) To ensure adequate internal amenity is provided through appropriate floor to ceiling heights. (c) To ensure buildings create a human scale to the street. (d) To encourage development and redevelopment potential. (e) To provide a transitional scale between commercial and residential. (f) To strengthen the urban form with consistent heights along streets. Controls (a) Refer to the WLEP 2012 Maximum Height of Buildings map for absolute building heights. (b) Development may not achieve the maximum numeric heights due to topography or other site conditions. (c) Development must not exceed the maximum number of storeys for the site as specified on Figure 25. (d) Lots are to ensure they do not overshadow neighbouring or adjacent residential lots so as to preserve solar access to private open space. (e) Lots to the southern side of Ebley Street, and the southern side of Bronte Road are to drop to 2 storeys at the rear to achieve solar access for adjacent properties." Figure 25: Maximum number of storeys (subject site highlighted)
9. I note that the Modification Application relies on a variation to control (a) and (c) of 1.13, Part E: Bondi Junction of WDCP, as the development that is the subject of the Modification Application exceeds four storeys.
10. In contrast, Mr Dickson, relying on the decision of O'Neill C in Big Property Group Pty Ltd v Randwick City Council [2021] NSWLEC 1161 ('Big Property') at [44], argues that DFC is not confined to a consideration of planning controls alone, and height and FSR in particular. He concludes that the development, as modified by the Modification Application, is in harmony with the character of the street and the DFC for the following reasons: "a) consistent with the approved development on the site, the proposal provides a 4-storey external wall height to Bronte Road, and a 5-storey external wall height to Porter Street. b) as shown in the photomontages, the proposal results in minor impacts to the Bronte Road streetscape due to a proposed 4.34m setback above the 4-storey street wall height. c) A recessive fifth storey maintains a secondary relationship to the taller developments in Bondi Junction in terms of height transition. d) proposed materials are consistent with that proposed under Development Consent DA/512/2016" (Exhibit 4)
11. I note that the setback dimension recorded by Mr Dickson at (b) above does not align with the plans for which consent is sought under the Modification Application. The fourth floor plan, A105 Revision E, dated 29/7/21 depicts a setback to Bronte Road at the fifth storey of 4.72m. (Exhibit D)
12. Mr Dickson, agreeing with the reasoning in Big Property, concludes that the "proposal demonstrates the proposal is compatible with the desired future character of the area, as contemplated by approved development on the site, which is characteristic of a 4-storey street wall and a maximum height of 5 storeys". (Exhibit 4)
13. Further, Mr Dickson argues that whilst he agrees with Mr Turisi that the proposed addition will be visible from three viewpoints on Bronte Road, he notes that Mr Turisi does not detail what impacts arise from the visibility of the fifth storey, nor provide reasoning to why the design of the additional unit on the fifth street is not an appropriate design response to the subject site. In contrast to Mr Turisi, Mr Dickson concludes that "(a)dditional bulk visible from Vantage Points 1, 2, and 3 are considered minor and consistent with the character of built form approved on the site on the grounds that a 4 storey street wall is retained to Bronte Road, and therefore strengthens the urban form along the streetscape". (Exhibit 4)
14. In the SEE, Mr Karavanas argues that the Modification Application, despite varying the control, meets the objectives of the height standard in LEP 2012, in particular objective (d), on the following grounds:

• The proposed additional unit will form part of a highly articulated façade which fragments the built form and reduces the perceived scale of the development.
• The exceedance of height arises predominately from the slope of the site, rather than an incompatible building height.
• The additional unit proposed in the Modification Application is well setback from each street boundary.
• The proposed development will still read as four storeys from the public domain with the fifth storey being a recessive element.
• That the overall scale of the development, as proposed to be modified by the Modification Application, "… is significantly less that what has been approved through a recent planning proposal (PP-2020-685) at No. 122 Bronte Road, which is located three properties to the south". Mr Karavanas argues that the Council's endorsement of the planning proposal "… demonstrated a clear strategic intent to capitalise on corner sites in the vicinity". (Exhibit B)
• That the development proposed in the Modification Application is of a similar scale and height as the heritage listed Waverley Telephone Exchange building which is within the visual catchment of the subject site.

1. In conclusion, Mr Karavanas agrees with the evidence of Mr Dickson and his conclusion that any additional bulk perceived in the streetscape in Bronte Road generated by the Modification Application is minor and consistent with the character envisaged by the planning controls. (Exhibit 4)
2. In response, Mr Turisi argues that Mr Karavanas' reliance on the built form proposed under the recently adopted controls for 122 Bronte Road fails to give adequate weight to the specifics of that site in comparison to the subject site. He argues that, firstly, the existing heritage building (the Waverley Telephone Exchange) provided the datum for the increase in the height of buildings and FSR standards in LEP 2012 for that site. Secondly, the existing building on that site is a heritage building which council seeks to retain, and finally 122 Bronte Road is on the corner of a significant road intersection. It is Mr Turisi's evidence that these three factors distinguish 122 Bronte Road from the subject site.
3. Further, Mr Turisi noted in his oral evidence that the development standards in LEP 2012, as they relate to 122 Bronte Road, are a building envelope which may not reflect any future development on that site. He argues that future development would need to be responsive to both the heritage item, its setting, and the relevant controls in WDCP, in particular those which seek a height of 2-3 storeys at the street frontage: cl 1.13 Number of Storeys, WDCP.
4. In his evidence Mr Turisi notes that relevantly one of the objectives of the height control in LEP 2012 is to: "a) establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties, and public spaces and, if appropriate, the sharing of views. …"
5. Giving weight to the objective, Mr Turisi argues that the additional unit proposed by the Modification Application will result in additional overshadowing to properties on the south western side of Bronte Road, in particular 115 Bronte Road and its private open space. Mr Turisi's assessment concludes that the Applicant's overshadowing diagrams show that the private open space of 115 Bronte Road is impacted by the development proposed in the Modification Application at 9.30am on June 21. He concludes that it is not until 9.45am that there is no additional overshadowing impact. In his oral evidence, Mr Turisi argued that the impact is more significant firstly as it arises from development which breaches the maximum height control, and secondly because the existing solar access to the residential component of 115 Bronte Road is poor.
6. In the alternative, Mr Karavanas argues that the proposal is consistent with the height standard objective "to preserve the environmental amenity of neighbouring properties" in terms of bulk, scale and overshadowing. He argues that the term 'preservation of amenity' does not imply, necessarily, that zero impact is required to satisfy the objective. He argues "… There is some elasticity in the term and a negligible or minor impact on one or a number of elements [of amenity] can still satisfy the term preservation of amenity". (Exhibit 4) Secondly, he argues that given the setbacks proposed by the Modification Application, the perceived bulk of the development is acceptable. He concludes that, on the basis of the photomontages produced by the Applicant, the additional unit will be "barely noticeable from Porter Street and not visually dominant when viewed from various vantage points along Bronte Road". (Exhibit 4)

• the additional unit does not result in additional overshadowing to the living areas or private open spaces of neighbouring properties along Bronte Road,
• the proposal results in minor overshadowing to 4 neighbouring properties along Bronte Road, which he summarises as: "- there is no difference in the overall shadow impacts to no.109 - 111 Brontë Road between the envelope of the Approved DA, the previous 4.55 envelope and the proposal. - the proposal results in 15 minutes additional shadow to commercial tenants on the second storey of no. 113 Bronte Road between 9.30am and 9.45am. - the proposal results in 45 minutes additional shadow on the ground floor commercial tenancy of 118 Bronte Road between 12.15 and 1pm." (Exhibit 4)
• Further, that the main bedroom and adjacent private open space of 115 Bronte Road still receives the required hours of solar access between 9.45am - 1.30pm meeting the requirements of the Apartment Design Guide.
• That commercial uses are transient in nature and on this basis the reduction in solar access would not substantially affect the amenity of the affected tenancies.
• The development of the site for a mixed-use development remains consistent with the objectives of the B4 - Mixed Used zone.
• No view corridors are impacted by the modification application and no privacy impacts arise. (Exhibit 4)

Submissions

1. In his closing submission, Mr Eastman outlines how the amended development application satisfies the Respondents two principal issues: character and the amenity impact of the modified development. Further, he concludes, that on merit the Modification Application warrants approval.

Character

1. Mr Eastman notes that within the visual catchment of the subject site are both the existing Waverley Telephone Exchange building at 120 Bronte Road and the potential (due to a recent rezoning) of a built form of 18m height and an FSR of 3.6:1 at 122 Bronte Road. He argues that these two sites are relevant firstly, to the determination of the existing and DFC of the locality and secondly, to an assessment and conclusion as to whether the development proposed to be modified by the Modification Application is compatible with that character.
2. Mr Eastman argues that the decision of the Court in Big Property and SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112 ('SJD DB2 v Woollahra') are both relevant to the determination of the DFC in the locality. He submits that the Court should adopt firstly the reasoning of Big Property that DFC is not confined to a consideration of planning controls alone and, in particular, not the built envelope controls of height and FSR, and secondly the approach taken by Clay AC in SJD DB2 v Woollahra at [67-70], which emphasises the importance of recent approvals and construction, summarised at [69] as: "The desired future character in my opinion must take into account the form of the buildings to the east which the Council approved under effectively the same controls as present. Those buildings exceed the height and floor space ratio controls. As the Applicant pointed out in submissions, this is not the case where there is an adjacent development approved and constructed many years ago which sits as an anomaly in the street. The developments under construction represent the recently expressed attitude of the Respondent to the controls and what is desired in this part of Cross Street."
3. On the basis of these decisions and their reasoning, Mr Eastman argues that the Court should prefer the evidence of Mr Karavanas and Mr Dickson that the proposed development, as modified by the Modification Application, in compatible with the existing and DFC for three broad reasons. Firstly, the modified development maintains a characteristic four storey street wall, with a recessive fifth storey; secondly, it will be compatible with the taller buildings in the locality; and finally it will be compatible with the recent development in the locality (such as 86 Bronte Road) and the recent rezoning of 122 Bronte Road.
4. In the alternative Mr Staunton submits that, in considering the compatibility of the development as modified by the Modification Application with the existing and DFC, the Court should not give undue weight to the anomalous buildings in the locality. Rather he argues that the Court should give weight to the character demonstrated by the existing buildings and the relevant planning controls in LEP 2012 and WDCP. In his submissions, Mr Staunton identifies the planning controls primarily relevant to the Courts consideration of DFC as:

• Zone objectives: cl 2.2 of LEP 2012
• Maximum Building Height: cl 4.3 of LEP 2012
• FSR: cl 4.4 of LEP 2012
• Design Excellence: cl 6.9 of LEP 2012, WDCP B12
• Number of Storeys: WDCP E1: 1.13

1. Further, in contrast to the submissions of Mr Eastman, Mr Staunton argues that the planning proposal for 122 Bronte Road is not an indicator of a general desire by the Council to increase heights or density in the precinct. Rather, he argues it is an indication that the Council seeks to specifically isolate that site as a prominent corner, or entry, to Bondi Junction. Mr Staunton argues that the subject site does not have the same characteristics. He submits that, on the evidence of Mr Turisi, the Court should find that the DFC for development of the subject site is one of four storey development, consistent with the planning controls.
2. Mr Staunton argues that an objective assessment of the montages prepared by the Applicant demonstrate that, despite the increased setback proposed by the amended modification application, the fifth level is not obscured in the public domain. He notes that whilst the Applicant states that the Modification Application does not seek to increase the overall height of the building, it will have the effect of firstly increasing the amount of built form which exceeds the height limit, and secondly removing the view of four storey built form from the streetscape of Bronte Road.
3. Mr Staunton concludes that, on the evidence of Mr Turisi, the Court should find that the Modification Application will result in development which is incompatible with the existing and DFC of the locality.

Amenity

1. At the close of the evidence, Mr Eastman identified three impacts arising from the development as proposed to be modified by the Modification Application. They are firstly, any impact to the public domain, secondly, the overshadowing impact to commercial uses on Bronte Road and thirdly, the overshadowing impact to the residential use at 115 Bronte Road.
2. In relation to any impact to the public domain, Mr Eastman argues that an objective assessment of the photomontages produced by the Applicant of the modified development demonstrate that the additional development proposed on the fourth level will have limited visibility. Therefore, any impact arising from that visibility should not be given determinative weight. Further, he argues on the basis of Mr Karavanas' and Mr Dickson's evidence (summarised at [64] and [60] respectively) that any impact would not be detrimental to the streetscape.
3. Mr Eastman argues that the Court should give minor weight to a 15min overshadowing impact arising from the proposed Modification Application on the commercial premises at 113 Bronte, on the basis of its limited duration and the use being non habitable.
4. Finally, Mr Eastman submits that the Court should embrace the reasoning of Clay AC in STM v Waverley at [75], in relation to the application of a similar objective seeking to preserve residential amenity. Namely that amenity should be viewed holistically: "I agree with the Applicant that Objective (a) is concerned with the question of amenity in general, and not limited to one aspect of amenity such as solar access. It is a question of fact and degree as to whether a certain impact on one aspect of amenity is such that the overall amenity of an affected property is or is not preserved."
5. Mr Eastman argues that on the evidence the Court would conclude that any overshadowing impact arising from the development modified by the Modification Application on 155 Bronte Road is reasonable on three grounds. Firstly, despite being notified of the Modification Application, the resident is not an objector to the development. Secondly, the residential component of the property at 115 Bronte Road maintains the minimum solar access to both their private open space and habitable rooms in compliance with WDCP. Finally, that modelling of a compliant development application indicates a potential for this impact to occur under the development controls.
6. Based on the preceding Mr Eastman submits that the Court, giving weight to the submissions and the likely impacts of the development, would conclude that the development as proposed to be modified by the Modification Application warrants approval.
7. In the alternative, Mr Staunton submits that in considering the issues raised in submissions and the merits of the Modification Application, the Court should give weight to the objectives of the height control, in particular objective (a) of cl 4.3 of LEP 2012 which seeks to "establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties and public spaces, and if appropriate, the sharing of views". I note that subcl (d) of cl 4.4 FSR of LEP 2012 is an objective of similar terms. Mr Staunton submits that the Modification Application introduces amenity impacts that were not present in the development consent. Additionally, he notes that these impacts arise from the breach of development controls and that those impacts are inconsistent with control (d) of cl 1.13 Number of Storeys in WDCP, which states: "Lots are to ensure they do not overshadow neighbouring or adjacent residential lots to preserve solar access to private open space."
8. Finally, Mr Staunton argues that, consistent with the reasoning of Clay AC in STM v Waverley at [76], the starting point for consideration of whether amenity is preserved is the current level of amenity enjoyed by the affected property. He argues that in these proceedings the existing solar amenity of 115 Bronte Road is limited. By reference to Exhibit D, he notes that as a result of the design of 115 Bronte Road no other bedroom will receive solar access and that other habitable spaces rely on skylights for daylight. In addition, he notes that the impacted balcony is the sole private open space for the unit. Giving weight to these matters, Mr Staunton argues that the overshadowing impacts arising from the Modification Application are unacceptable. Further, he argues that the Court should give weight to Mr Turisi's observation that the overshadowing impacts arise from the non-compliance with the maximum height control of LEP 2012 and from a variation to 1.13, Part E: Bondi Junction of WDCP.
9. Based on the preceding, Mr Staunton argues that the Court would conclude that the Modification Application is inconsistent with the character of the locality and has unreasonable amenity impacts, both of which warrant the refusal of the application.
10. At par [90-93] of this judgment, as required by s 4.56(1)(d) of the EPA Act, I give consideration to the issues raised in submissions and the amenity impacts of the Modification Application and conclude: 1. That the development proposed to be modified by the Modification Application is incompatible with the DFC of the locality. 2. That the detrimental impact arising from the incompatibility is a likely impact of the development that warrants refusal of the Modification Application; and 3. That the amenity impacts on adjoining properties whilst detrimental are insufficient, on their own, to warrant refusal of the Modification Application.

Assessment against s 4.15 of the EPA Act and considerations of reasons for the grant of consent.

1. Subsection (1A) of s 4.56 requires that the consent authority take into consideration such of the matters in s 4.15 of the EPA Act that are relevant, along with the reasons given by the consent authority for the grant of consent to the Approved Development.
2. The original grant of development consent proceeded from an agreement between the parties pursuant to s 34 of the LEC Act. The judgment and final orders to give effect to that agreement are the decision of the Court in Bureau SRH v Waverley. There is nothing in the reasoning of that judgement that, in my view, precludes me from granting consent to the Modification Application if a merit assessment supports such a conclusion.
3. My assessment of the Modification Application under the matters of relevance at s 4.15(1) of the EPA Act follows.

Provisions of LEP 2012 & WDCP: s 4.15(1) of the EPA Act

1. In determining the compatibility of the development with the locality I have given greater weight to its compatibility with the DFC. My reasoning is that firstly the planning controls are directed to encouraging redevelopment by nominating FSR and the height standards that are greater than the existing buildings, and secondly the locality is not a heritage conservation area or the like where the focus of the planning controls is on maintenance of existing character, and finally the locality contains a number of newly completed developments or sites where construction is actively occurring. Support for this approach is found in the planning controls which seek to encourage development and redevelopment are potential, see for example: cll 4.3(1)(b) and 4.4(1)(a) of LEP 2012, E1 1.13: Objective B of WDCP.
2. In my opinion the development as proposed to be modified by the modification application is not compatible with either the height, bulk, or scale of the DFC of the locality.
3. I accept and adopt the evidence of Mr Turisi and Mr Williams, summarised at [53] - [57] that when read together the controls in LEP 2012 and WDCP identify the intent of the Council that the future character of the locality is for a four-storey built form (15m), with a consistent street edge and height fronting Bronte Street.
4. I accept the agreed position of the planning and urban design expert's that the proposed additional unit at the fifth story will be visible in the streetscape of Bronte Road. Visibility itself is not an impact, the relevant question therefore is, whether having regard to the visibility of the fifth storey, the modified development is compatible with the DFC. For the following reasons I conclude it is not:

• firstly the 4.72m setback at the upper level is insufficient for the building to read as a four-storey building in the streetscape. The visibility of the upper level within Bronte Road, in my view, is contradictory to a character of a consistent four-storey built form.
• I do not accept the reliance of the Applicant on either the Waverley Telephone Exchange building or the recent rezoning of 122 Bronte Road as a justification to vary the controls at 1.13 of Part E: Bondi Junction of WDCP. Waverley Telephone Exchange building is a distinctive heritage item which under the applicable planning controls is intended to remain a prominent element in the streetscape. The planning controls achieve this by setting a height of development surrounding the building of 4 storeys, maintaining the Waverley Telephone Exchange building as a higher element. To allow adjoining, or proximate, built form to have increased heights to meet the height of this heritage building would have the potential of diminishing its prominence in a manner which I am satisfied is inconsistent with the intent of the relevant planning controls.
• Further, I do not accept that the recent rezoning of 122 Bronte Road supports an argument for increased height on the subject site. It is plain that the intersection of Birrell Street and Bronte Road is a significant intersection when compared to the corner of Porter Street and Bronte Road, the subject site. I accept the submission of Mr Staunton at [79] that the rezoning of 122 Bronte Road is not an indicator of a desire of the Council to increase height or density in the locality generally. If the Council was of the view that a general increase in building height in this location was warranted, an amendment to LEP 2012 could be prepared. I do not accept that there is any evidence that such a change is the DFC of the locality. In my view the subject site is not a prominent corner site, nor a "gateway" which may justify increased height as a landmark element in the streetscape.
• Finally, I do not accept the reliance of Mr Eastman in his submissions on the decision of the Court in SJD DB2 v Woollahra. In my view this is not a locality where it can be argued that the existing and recently approved developments are inconsistent with, or distinct from, the desired form of development expressed in the planning controls. As noted by Mr Turisi, recently approved development along Bronte Road between Ebley Street and Birrell Streets are four storeys. This evidence was not contradicted by the Applicant.

1. It follows from the preceding that I find that the development, as proposed to be modified by the Modification Application, is not compatible with the DFC of the locality. Further, I am satisfied that this is a detrimental likely impact of the development that supports the refusal of the Modification Application along with my findings that the requested variation to the controls in WDCP lack merit.
2. The modification application relies on a variation to the provisions of WDCP at 1.13 of Part E: Bondi Junction. These provisions are extracted at par [58]. In particular the Modification Application seeks to vary control (a) and (c) to allow a fifth storey. Objective (f) of this provision is to 'strengthen the urban form with consistent heights along streets.' By reference to figure 25 of WDCP, the subject site is nominated as 4 storeys. Further, an objective of cl 4.3 Height of Buildings in LEP 2012 is 'to ensure that buildings are compatible with the height, bulk and scale of the desired future character of the locality and positively complement and contribute to the physical definition of the street network and public space.' I accept and adopt the evidence of Mr Williams that, when read together, the intent of the relevant planning instrument and development control plan is to establish a consistent height of new development along Bronte Road to provide physical definition of development on the approach to Bondi Junction. Given this context, in my view, it is not appropriate to allow a variation to control (a) and (c) of 1.13 of Part E: Bondi Junction of WDCP in the circumstances of this case.
3. Giving weight to these controls, their objectives, and my findings that the development as proposed to be modified by the modification application is not compatible with the DFC, it is the conclusion of my evaluation of the merits of the modification application are such that the Modification Application warrants refusal: s 4.56(1A) of the EPA Act.

Likely impacts of development: s 4.15(1)(b) of the EPA Act

1. In relation to the amenity impacts raised by the Respondent, I accept and adopt the evidence of Mr Turisi that the fact the impacts arise from a non-compliant element of the proposed development is relevant to the assessment of the reasonableness of the impact. Variations to controls that exceed development standards in environmental planning instruments require greater scrutiny as they exceed the built form, and its associated impacts, that were foreseen and subject to consultation in the making of the LEP.
2. However, in these circumstances I accept the submission of Mr Eastman, and the evidence of Mr Karavanas, that in considering an impact on amenity it is appropriate to focus on amenity in broad terms. I adopt the reasoning of Clay AC in STM v Waverley at [76] to this effect. In my view when the totality of amenity experienced by the property at 115 Bronte Road is considered, the impacts arising from the Modification Application are minor in both duration (15 mins on the 21 June) and area of impact on the affected property. I find that such impacts are insufficient, on their own, to warrant refusal of the Modification Application.
3. In a similar manner, I find it appropriate to give little weight to the overshadowing impacts on the commercial building. I accept the evidence of Mr Dickson (summarised at [67]) that commercial uses are transient in nature, and that the impact arising from a reduction in solar access of 45 minutes is not likely to materially affect the amenity of the affected tenancies.

Conclusion

1. I am satisfied that the preconditions at s 4.56 of the EPA Act are met and that the Court, as consent authority, has power to grant consent to the Modification Application. However, I find that on merit the exercise of that power is not warranted as the Modification Application: firstly, does not comply with Sch 1, Pt 1, cll 3, 4 of the Regulation; secondly, the development as modified is inconsistent with the DFC of the locality which is a detrimental impact arising from the development, and finally the Modification Application relies on a variation to the planning controls which is not supportable.

Orders:

1. The orders of the Court are: 1. The appeal is dismissed. 2. Modification Application 419/2015/A which seeks consent to modify the approved development by the addition of one two-bedroom apartment on level 4 (being the fifth storey) at 110-116 Bronte Road, Bondi Junction is determined by way of refusal. 3. Exhibits are returned with the exception of Exhibit 1, A and B.

Commissioner of the Court 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: 13 December 2021