Collaroy Street Pty Ltd v Northern Beaches Council

Proposal

1. The amended application seeks approval for the demolition of existing structures and the construction of a four and five storey structure containing 34 residential apartments, ground level retail premises, and basement and ground level car parking and associated other works including landscaping. The apartments would be located over three levels. Running between Alexander and Collaroy Streets (and also involving the eastern laneway), there would be a ground level through-site pedestrian link (through site link). The ground floor would also include some communal areas for apartment residents. Some 90 parking spaces would be provided including visitor and retail tenant spaces.

Statutory setting

1. The site is zoned B2 Local Centre under the provisions of Warringah Local Environmental Plan 2011 (WLEP), as is land to the immediate east of the site, and otherwise running along Pittwater Road in the environs. The Council carpark is also zoned B2. The rest of the adjacent and nearby lands are zoned R2 Low Density Residential.
2. I accept the advice of senior counsel representing the applicant that the proposal would be characterised, in a statutory sense, as shop top housing development, based on the interpretive findings in Hrsto v Canterbury City Council [2014] NSWLEC 121. This position was entirely agreed by Councils' legal representative. Shop top housing development is a nominated permissible use in the zone.
3. Of particular note with respect to WLEP is that the proposal contravenes the building height control under cl 4.3. The applicant relies on cl 4.6 of WLEP which allows for exceptions to development standards provided certain prerequisites are met. The issue of building height is a considerable issue in the case.
4. State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) also applies and comes into consideration below.
5. Warringah Development Control Plan 2011 (WDCP) applies to the site and is a consideration in evidence.

Proceedings

1. Proceedings were conducted under the guidance of the Court's COVID-19 Pandemic Arrangements Policy, issued 1 April 2021. In this instance the opportunity was taken to conduct a restricted inspection of the site and context, accompanied by the legal advisors to the parties, only. Proceedings otherwise were conducted on the Microsoft Teams platform. Submissions were heard from two objectors.
2. The experts providing evidence in the proceedings were as follows:

Issues

1. With the amendments to the application, outstanding issues can be summarised as follows:

• Building height - proposal embodies excessive building height, exceeding height controls in WLEP (cl 4.3).
• Character and built form - proposal is suggested to be inconsistent with, and other than complementary to, the character of the local area and contrary to planning provisions.
• Public interest - having regard to public submissions objecting to the proposal.

1. There is considerable overlap among the issues nominated above. I will commence with the consideration of building height, necessarily including attention to the contravention of the WLEP height control, then follow with evidence and findings on other matters.

Building height contravention

1. The proposal contravenes the maximum building height standard under cl 4.3 of WLEP. It also exceeds the three storey control required by clause B2 of WDCP.
2. The WLEP height control is 11m and various elements of the top floor "pavilion" structures fronting both Alexander and Collaroy Streets exceed this height. A written request prepared in accordance with cl 4.6 of WLEP, by Boston Blyth Fleming and dated 13 September 2021 (Ex M), provides details of the contraventions, using height blanket diagrams provided as part of the application before the Court (Ex B, DA-40(B) - DA-44(B)). Here I note the maximum contravention indicated in Ex M is 3m for one of the lift overruns, but more generally the contravention is limited to a partial breach of the upper most floor. While the western edge of the Alexander Street fronting pavilion falls within the height control (by up to 895mm (Ex M p 2)), according to Ex M the contravening built form elements commonly breach the control by up to around half the height of the uppermost floor and a little more in the north-east corner (adopting the levels of external gutter lines as a reference point). Roof elements, including lift overruns, contravene in excess of this.

Whether compliance is unreasonable or unnecessary

1. Mindful of cl 4.6(3)(a) of WLEP, Ex M seeks to demonstrate that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case. It does so mindful of Preston CJ's finding in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). Ex M uses the first "Wehbe way", seeking to show how, notwithstanding the contravention, the development achieves the objectives of the standard. The objectives of cl 4.3 are, relevantly, as follows. (a) to ensure that buildings are compatible with the height and scale of surrounding and nearby development, (b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access, (c) to minimise any adverse impact of development on the scenic quality of Warringah's coastal and bush environments, (d) to manage the visual impact of development when viewed from public places such as parks and reserves, roads and community facilities. …
2. In regard to the first objective, Ex M refers to a number of nearby sites already occupied by four storey development, including the property to the immediate east of the site along the Collaroy Street frontage which wraps around into Pittwater Road (1119 Pittwater Road). Other cited examples of existing four storey buildings include those at 7-11 Collaroy Street and 1-5 Collaroy Street, across the road and west of the site. It is posited that (Ex M p 12): "Development within the site's visual catchment, and within the 11 metre height precinct, is eclectic in nature and currently in transition with a number of older 1 and 2 storey commercial and mixed use buildings having been replaced with more contemporary 3 and 4 level shop top housing building forms."
3. It is argued that a "predominant 4 storey building presentation" has already been established along Pittwater Road and within Collaroy Street by recent approved and constructed shop top housing development. Scope for further redevelopment of the older buildings now fronting Pittwater Road and backing onto the laneway reservation, east of the site, is argued. The taller cinema's heritage listing is also noted.
4. In terms of immediately adjacent development, the fact of the proposal's compliance with the height control where it abuts low density residential development (the site's western boundary along Alexander Street) is noted. As is the fact of the car park development (zoned B2 Local Centre) to the immediate west along Collaroy Street.
5. I am satisfied that Ex M has demonstrated that the first height objective has been achieved. Of note here is that the test is compatibility with "surrounding and nearby development", or that which exists now, rather than that which might be desired into the future. This emphasises the importance of the surrounding context information provided in Ex M, as referenced above at [20]. For me this argument successfully counters the argument put by Ms Haidari that "(a development) above the 11m height control (resulting) in a 4 storey building cannot be considered compatible with surrounding or nearby developments, where the controls would reasonably anticipate 3 storey buildings" (Ex 3 par 3.24).
6. I agree with Ms Haidari that it can be more difficult for a taller building to be compatible and that it depends on the overall built form relationships. Important for the proposal, in compatibility terms, are certain design features which in a sense mitigate potential height impact. Of most importance are the boundary setbacks of the (contravening) pavilion elements which are important in terms of streetscape perceptions as a compatibility factor. That is to say, I agree with Ex M that the contravening elements will be visually recessive, rather than present as obvious or visually bulky to those walking by. Ex M adequately demonstrates that the proposed building, as a consequence of its design response to context, would be capable of existing in harmony with the height and scale of surrounding and nearby development, despite the height contravention.
7. I turn to the second objective. In regard to minimising visual impact, Ex M relies on the demonstration of "compatibility" as argued with respect to the first objective, but also highlights the recessive nature of the contravening built form elements and the extent of roof articulation incorporated into the design. On this basis I am satisfied that the proposal minimises visual impact and again here, on the physical evidence, I disagree with a view expressed by Ms Haidari (Ex 3 par 3.28).
8. In regard to the disruption of views, Ex M provides photographic evidence, survey material and associated analysis which indicates that view lines which might be otherwise thought to be impinged upon by the contravening building height elements are already generally screened by existing vegetation and existing buildings. Or in instances where the proposed building would impinge upon a proportion of existing views, the view that might be lost is not of particular value, and more valued views (eg open views to the ocean) are retained. These arguments in Ex M tended to confirm my own conclusions from my physical inspection of the site environs with legal representatives of the parties. I accept the evidence in Ex M that view impacts have been minimised as a consequence of the building design (including through upper level setbacks along both street frontages and roof articulation) and mindful of the particulars of the now available views.
9. In regard to minimisation of loss of privacy, I accept the arguments of Ex M (p 34) that: "… the non-compliant building elements have been designed to minimise privacy impacts through the more recessive upper-level setbacks adopted to both street frontages and the provision of integrated privacy attenuation measures in the form of upper-level planter boxes. I note that Apartment 30, which immediately adjoins No. 7 Alexander Street and the zone boundary interface, is compliant with the 11 metre building height standard with appropriate privacy maintained to this immediately adjoining residential property."
10. In regard to minimisation of loss of solar access, I accept the arguments of Ex M (p 35) that: "…(shadow diagams) demonstrate that shadows from the building height breaching 4th floor building elements fall predominantly onto Alexander Street and in any event do not preclude the maintenance of at least 3 hours of solar access to the north facing living areas and adjacent open space areas of surrounding residential properties on 21st June in strict accordance with the control."
11. Based on my findings above, I am satisfied that Ex M has demonstrated that the second height objective has been achieved.
12. I am satisfied that Ex M has demonstrated that the third and fourth height objective have been achieved. Ex M argues, effectively it seems to me, that existing building heights (including existing four storey development) do not give rise to an adverse impact on the scenic quality of the local or wider coastal and bush environments and that the proposal would sit reasonably within this existing setting from such viewing positions, rather than be perceived as "jarring" (Ex M p 35). Similarly, the proposed building height is argued effectively to not give rise to adverse visual impact when viewed from public spaces, generally as a consequence of the contextual and building design attributes as previously presented in Ex M.
13. In turn, and in accordance with the first Wehbe way, I find that Ex M has adequately demonstrated that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case. Whether there are sufficient environmental planning grounds
14. The planning grounds raised in Ex M and argued to be sufficient to justify the contravention are as follows: 1. Topography and local flooding in the environs of the site's south east sector. The suggestion is that the flooding constraint makes strict compliance with the building height standard more difficult to achieve. 2. A claimed public benefit associated with the through site (pedestrian) link, including the notion of compensatory floor space "redistributed to Level 3". 3. An appropriate response to existing windows facing the site at 1119 Pittwater Road (in immediate proximity to the common boundary with the site), which would today be expected to be setback 3m from the common boundary. 4. Contextually responsive building design, generally as argued with respect to the development standard objectives. 5. It was also argued, generally based on grounds otherwise raised, that approval would promote achievement with nominated objectives of the EPA Act, in particular the objectives at s 1.3(c) - orderly and economic use and development, (g) - good design and amenity of the built environment, and (h) - protection of the health and safety of their occupants as argued (Ex M p 49).
15. Ms Haidari was not convinced of these planning grounds. There was seen to be an over-reliance on the argument that the proposal was compatible with local development. Deficiencies in regard to the public benefits of the proposed through site link were raised, including that it would only be open certain hours and that it wasn't sufficiently open to the sky. I understood, the key point here to be that this link was insufficient to secure the extent of floor area which contravened the height control, and that the link was mainly "self-serving". The site topography was not seen to be a constraint to development of a compliant building. (Ex 2 p 15-17).
16. Ms Haidari also raised more fundamental concerns about planning control breaches such as proposed here, and how they might affect the wider function of a local planning framework (Ex 3 par 5.12): "In my opinion, the approval of this application would not be in the public interest as it would result in an inconsistent application of the planning framework and undermines the integrity of the strategic policy positions and controls applying to the site and surrounding area."
17. On balance I am convinced that there are sufficient environmental planning grounds to justify the contravention in the circumstances. I believe it generally follows my earlier conclusion that the building height, despite the contravention, does provide a quite responsive and compatible building, with a good capacity to exist in harmony with its setting, in local context terms.
18. The three factors perhaps claimed as justifying a kind of compensatory response by way of additional Level 3 floor space warrant brief individual attention: 1. I would find that the through site link as proposed does provide legitimate public benefit. The link as now designed seems to have responded to the concerns previously raised and now would be reasonably seen as providing: a good level of openness to the sky and legibility for users including sound resolution of integration with the laneway. The link can add something interesting and positive to local pedestrians (aligning with the fourth objective of the B2 Local Centre zone) and something "safe and comfortable" (aligning with WDCP objectives relating to centres - WDCP Section F). Conditions make clear that the link should be generally open to the public and at least between 7am and 7pm daily (proposed condition 108). I see a reasonable responsiveness to the findings of Council's Design and Sustainability Advisory Panel in that regard (Ex 2 folio 258). 2. The point of the argument in regard to the localised flooding seems to be that what is proposed allows for the street level activation, whereas were the building to be lowered (eg to better meet the height control) then the ground level would in effect be a sub-ground level, less likely to achieve activation principles. 3. The design response to the windows at 1119 Pittwater Road is pragmatic (in terms of the question of what might be done about an historical anomaly on adjoining land) and seems to provide for a sound overall design response in terms of linking the design schema, the laneway and the through site link.
19. In my view these points support the argument that the overall proposal now provides for contextually responsive design, which is a planning ground in the sense that it promotes promote good design and amenity of the built environment, consistent with s 1.3(1)(g) of the EPA Act.
20. It is useful for me here to mention that the issue of the proposal's non-compliance with clause B2 of WDCP has been a consideration for me. I have reviewed the objectives of the applicable three storey control. Based on the reasoning in regard to my conclusions on the WLEP height contravention, I see the proposal as meeting the relevant WDCP objectives, notwithstanding the breach. I can mention here directly the fact of the existing four storey buildings in the immediate site vicinity. Mindful of s 4.15(3A) of the EPA Act, it is reasonable here for me to apply flexibility in regard to the WDCP breach.
21. Together, the above findings mean Ex M has adequately addressed the matters required to be demonstrated by cl 4.6(3) of WLEP. It follows that the test of cl 4.6(4)(a)(i) is satisfied in regard to the building height contravention.

Public interest

1. I now turn to the test at cl 4.6(4)(a)(ii) of WLEP, and whether the proposed development would be in the public interest because it is consistent with the objectives of the building height standard and the objectives for development within the B2 zone.
2. The interpretation of the word "consistent" has been considered in many judgments of the Court. Here, briefly, I accept the interpretation that the word consistent is synonymous with compatible (Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 at [45]).
3. I agree with and rely on Ex M's demonstration that the proposed development is consistent with the objectives of the building height standard as considered above.
4. The B2 zone objectives in WLEP are as follows: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To provide an environment for pedestrians that is safe, comfortable and interesting. • To create urban form that relates favourably in scale and in architectural and landscape treatment to neighbouring land uses and to the natural environment. • To minimise conflict between land uses in the zone and adjoining zones and ensure the amenity of any adjoining or nearby residential land uses.
5. The proposal is: (1) consistent with the first zone objective in that it would provide for retail or business uses to serve local people, (2) consistent with the second zone objective again in that it would promote employment opportunities on the site, (3) consistent with the third objective in that it provides for additional accommodation close to public transport services along Pittwater Road (the site locality natural advantages in regard to walking and cycling which the proposal would be seeking to associate with), (4) consistent with the fourth zone objective directly as a consequence of the through site link which is proposed, (5) consistent with the fifth and sixth zone objectives because of the contextually responsive design as found above.
6. Based on my findings above, the proposed development will be in the public interest because it is consistent with the objectives of the building height standard and the objectives for development within the B2 Local Centre zone of WLEP. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of WLEP are met in regard to the building height contravention.

Conclusion - building height contravention

1. I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b) of WLEP but note that I have considered the matters in cl 4.6(5) in coming to my conclusions in regard to the contravention and find nothing of significance arises in regard to these matters.
2. With the above findings, the states of satisfaction required by cl 4.6 of WLEP have been reached and there is, therefore, power to grant development consent to the proposed development notwithstanding the breach of the building height standard.

Character and built form

1. Exhibit 1 raised contentions that the proposal would be inconsistent with the character of the local area and contrary to certain provisions of SEPP 65 and WLEP. The concern was in regard to the fifth objective of WLEP and the following Design Quality Principles nominated in SEPP 65:

• Principle 1 - Context and neighbourhood character;
• Principle 2 - Built form and scale;
• Principle 3 - Density;
• Principle 5 - Landscape; and
• Principle 6 - Amenity.

1. Ms Haidari was concerned particularly about Principles 1-3 (Ex 3 par 2.38). The point of dispute among the experts was captured by a useful synthesis, as follows (Ex 3 par 2.2): "Whether the proposal satisfies the Design Quality Principles of SEPP 65 and provides for a built form which is compatible with the height and scale of surrounding and nearby development."
2. Among other things, Ms Haidari's concerns related to the height contravention which was seen as the "primary control" for this setting mindful of the fact that no floor space ratio applied. Further concerns were put, such as (Ex 2 pars 2.39-2.40): "In respect to the design quality principles, the significant change in height and density from that anticipated by the suite of applicable controls, results in a form of development that does not relate positively or favourably to either the existing or desired future character when considered in the context of the broader locality. The controls anticipate a change in the character of the area, but within the planning controls established for the locality under the WLEP 2011. The extent of variation to the applicable controls (particularly building height and number of storeys) results in an inappropriate scale and a form of development that is not envisaged by the planning controls."
3. I have considered the issue of building height, including in relation to WLEP provisions which involve certain character questions, finding favourably. There is nothing in the design quality principles which would suggest to me that the proposal would be unsatisfactory in regard to fitting into its context and the local neighbourhood character, its built form and scale or its density (mindful of Design Quality Principles 1-3). I also note that the proposed landscaping and amenity implications for residents are no longer in contention in this matter. I have already found the proposal satisfactory in regard to the fifth objective of the B2 zone in WLEP.
4. The proposal's relationship with the residential neighbour to the west along Alexander Street was also raised. Ms Haidari was concerned that the proposal did not meet the numerical standard contained at Part 3F.1 of the Apartment Design Guide (ADG). This provision of the ADG is concerned with visual privacy (see Objective 3F-1). I accept Mr Boston's advice, which I don't think was contested, that appropriate privacy is maintained to this adjoining property deep soil landscape area within the side boundary setback area and placement of fenestration and fixed privacy attenuation devices, along with increased upper level setbacks (Ex 3 par 2.31).
5. I mention here that mindful of SEPP 65 and relevant provisions of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), the Applicant has provided a Design Verification Statement to meet the requirements of cll 50(1AB) and 143A of the EPA Regulation (prepared by a Registered Architect with reference number: 6072). I also mention again that I have considered the report of the Northern Beaches Design and Sustainability Advisory Panel (meeting 17 December 2020 - Ex 2 Tab 8). Generally I find that the proposal relates favourably in scale and in architectural and landscape treatment to its context.

Submissions

1. Council took me to the large body of submissions raised in regard to the application which I have given consideration to. I acknowledge the advice of Mr Boston in regard to objecting submissions as put at Attachment D to Ex 3. Objecting submissions of pertinence were essentially captured in the issues raised by Council and otherwise addressed above.
2. I will mention here the two oral submissions heard at the commencement of the hearing, each backed up with written documentation. Submissions were put by a practicing town planner on behalf of a neighbour located somewhat to the west and up the hill from the site along Collaroy Street. The key concern raised was in relation to the building height contravention. In my deliberations with respect to this contravention I have given consideration to the issues raised in this submission, which for me were strongest in regard to the question of whether there were sufficient environmental planning grounds to justify the contravention. I think the main argument put in the objecting submission was that Ex M inferred, on more than one occasion and without justification, that there was a kind of entitlement to the upper floor level and contravention. I merely note here that I am conscious of this point of view, which I refer to in the consideration of Ex M, above [36]-[37].
3. Another practicing town planner/architect raised concern, on behalf of owners of 1119 Pittwater Road. Two main points were raised. The first was in regard to the treatment of the windows along the rear wall of some of the apartments which sit on the shared boundary with the subject site. My understanding was that, it was agreed by the experts and this planning practitioner that this concern was addressed with the design schema (including proposed building offsets from the common boundary with 1119 Pittwater Road). The second concern was in regard to construction stage particulars, which for me where appropriately addressed through conditions: specifically Condition 1 which requires the development to be carried out in accordance with the recommendations and requirements of a geotechnical engineering report prepared by Coffey and Partners, and the prescribed condition embodied in cl 98E of the EPA Regulation which relates to shoring up of adjoining properties in related instances).

Other matters

1. The parties agreed there were no other jurisdictional issues of concern in this matter and I accept this advice. I note here that I accept the findings of Council's own assessment report for this matter and I am satisfied in regard to and the matters raised at cl 7 of State Environmental Planning Policy No 55 - Remediation of Land (Ex 2 Tab 11 p 312), cll 45 and Division 17 of State Environmental Planning Policy (Infrastructure) 2007 (Ex 2 Tab 11 pp 326-7) and cll 6.1, 6.2 and 6.4 of WLEP (Ex 2 Tab 11 p 328).

Conclusion

1. The proposal, as now before the Court, warrants support as it adequately responds to the planning controls and concerns raised by Council, its Design Review Panel and objectors.
2. The Court orders that: 1. The written request seeking to justify the contravention of the height of buildings development standard at cl 4.3 of Warringah Local Environmental Plan 2011, prepared by Boston Blyth Fleming and dated 13 September 2021, is upheld. 2. The appeal is upheld. 3. Development consent is granted to Development Application No. DA2020/1453 for demolition works and construction of a shop top housing development at 4 Collaroy Street Collaroy and 1 Alexander Street Collaroy, subject to the conditions of consent in Annexure A. 4. The following exhibits are returned 2, 3, 4, R, S, V.

Amendments 23 December 2021 - Pursuant to UCPR r 36.16, the Court amends the final orders of 22 December 2021 to remove the reference to Exhibit A. 18 February 2022 - Pursuant to UCPR r 36.17, the conditions of consent referenced as Annexure A in Order 3 made on 22 December 2021 are amended as follows: (1) In Condition 24, the text "169 residential spaces" is replaced with "69 residential spaces". (2) In Condition 64, the text "submitted Waste Management Plan titled dated [INSERT]" is replaced with "submitted Waste Management Plan dated 22 October 2020". 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: 18 February 2022