GJD Property Pty Ltd v Waverley Council

Land and Environment Court (NSW)|2017-02-08|Before: Revision J

Solicitors: Mr M Sonter Mills Oakley (Applicant) Mr S Patterson Wilshire Webb Staunton Beattie (Respondent) File Number(s): 168407/2016

The site and its context

The site is known as 10 - 14 Hall Street, Bondi and is irregular in shape with a northern frontage to Hall Street of 24.38m and battleaxe access with a 3.025m frontage to Jaques Avenue (the western frontage) that is used to provide vehicular access. The site area is 908.6m2.
A two storey building incorporating ground floor retail and one storey residential accommodation is located at the northern end of the site fronting Hall Street. The rear portion is currently used for servicing and car parking.
Bondi Beach is around 400m to the east and the site is within the Bondi Commercial centre.
Development surrounding the site is predominantly medium density mixed use buildings with ground floor retail at street level. Directly to the east of the site is Ravesi's Hotel with Campbell Parade and Bondi Beach beyond.
The surrounding locality is characterised by recent urban renewal of the area prompted by several major redevelopments in the Bondi Beach area and differing building forms reflecting the ongoing transformation and renewal of the precinct.

Background and the proposal

The consent provides for demolition of all existing site improvements and the construction of a building that incorporated two basement parking levels, three ground floor retail tenancies fronting Hall Street and serviced from a rear, at grade loading bay and four levels of residential apartments above.
The deferred commencement conditions require the deletion of a fifth level (6th storey) of apartments that was originally proposed in the application and deemed unsuitable by the council. The application seeks to reinstate that fifth level, albeit, in a different configuration to that originally proposed.
Condition 1 of the deferred commencement conditions is in the following form: 1) No approval is expressed or implied for the top floor (level 5) of the building. The top floor (level 5) is to be deleted from the plans and building height is to be limited to the parapet of level 4 (RL 30.23). The lift overrun, roof plant and clerestory windows shall have a maximum height of RL 31.00. The location and size of the lift overrun and roof plant must be in accordance with architectural drawing number DA:108 (roof plan), Revision J, prepared by Smart Design Studio and received by Council on 29 January 2015.
In addition to the deferred commencement conditions, Condition 2 of the operative conditions required general modifications and architectural design resolution. Of particular relevance to this case is condition 2(a) which states: (a) Upon deletion of level 5, the plans for the new upper level (level 04) shall be amended to generally be in accordance with the sketch plan prepared by Smart Design Studio and received by Council on 9 March 2016.
The application before the Court seeks to delete these conditions from the consent however, as the appeal is one under section 97(1) of the EP&AAct the whole of the consent is the subject of Court's determination.
The Council does not submit that consent should not be granted however it maintains its position that the construction of the fifth level or 6th storey should not be allowed.
The applicant sought and was granted leave during the hearing to rely on amended plans (Exhibit B). Those plans reflected changes resulting from the town planners' joint reporting process.
The development comprises:

two basement carparking levels accessed from the at grade service area via two car lifts, vehicle access from Jaques Avenue, parking for 34 cars (including four accessible spaces) bicycle and storage and plant areas including garbage storage;
ground floor retail area fronting Hall Street that is capable of division into 3 tenancies and has a total floor area of 483 m²;
ground floor foyer area accessed from Hall Street to service the residential apartments; retail service areas including toilet and garbage store;
levels 1 to 5 contain a total of 29 apartments.

The balconies of the units that front Hall Street are constructed to the northern property boundary at levels 1 to 4 whereas the balcony for the upper level unit is setback 3.91m from that boundary. The face of the building is further setback between 7.36m and 8.56m on that level.
The ground floor would be constructed to the side boundaries as is the front section of levels 1-4 however with a shorter section of wall at the upper levels. The length of wall on the western boundary is approximately 8.5m and 15m on the eastern side at levels 1-4.
The apartment portion of the building is a T-shaped structure with the central portion to the south of the units that front Hall Street setback from the side boundaries. Those setbacks are greater on the western side to compensate for the proximity of the four storey building at Nos. 16 to 18 Hall Street that is built in close proximity to the common boundary and contains windows within its eastern elevation that face the site. The setbacks on this side vary from nil to 0.985m where there are blank walls and, due to the irregular shape of that boundary, the setback varies from 3.78m to 6.865m to the glass edge with angular shaped balconies protruding within that setback. The setback from the eastern boundary varies from 3.21m to the outer face of the walls and 3.91 m to the glass line where the units adjoin the balcony areas and again the balconies protrude within that setback area.
Levels 1 and 2 are erected above the at grade service area and carpark entry and extend to the southern property boundary. On level 3 a setback of 6.15m is provided to the building with the balconies extending to approximately 2.5m of that boundary. A similar setback is provided at level 4 however there are no south facing balconies and at level 5, a large balcony is located above the lower units' footprint. The apartments on that level are setback around 10.5m.
The composition of apartments on the top level, level 5 comprise a large living/dining area with wraparound balcony and two bedrooms at the northern side with stair access to this apartments from level four where a third bedroom is located. The living/kitchen/dining area and one bedroom of a second apartment that also has a second bedroom on level 4 are provided at the southern end of that level. It is that unit that enjoys the south facing balcony.

The planning controls

The site is zoned B4 Mixed Use under the provisions of Waverley Local Environmental Plan 2012 (LEP). Clause 2.3 (2) of the LEP requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the B4 zone are: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To encourage commercial uses within existing heritage buildings and within other existing buildings surrounding the land zoned B3 Commercial Core.
Part 4 of the LEP provides Principal development standards with clauses 4.3 Height of buildings and 4.4 Floor space ratio (FSR) relevant to the application.
The maximum building height for the site is 15m and the maximum FSR is 3:1.
The agreed FSR is 2.89:1 which is less than the maximum allowed under the LEP. According to the evidence, the building height with the additional storey would be 19.06 m or 4.06m above the maximum allowed. The applicant relies on a written request seeking to vary the height pursuant to the provisions of clause 4.6 of the LEP.
Waverley Development Control Plan 2012 (DCP) applies to the site which is in the Bondi Beachfront area. The provisions of Section E2 apply to that area with the part containing general objectives and controls for development as well as specific objectives and built form controls for five character areas. A development is required to meet the general objectives and controls as well as specific objectives and built form controls for the specific area in which the development is located.
The site is in character area C, Campbell Parade Centre. The desired future character (DFC) objectives are: (a) To support and maintain the iconic role and unique character of the Campbell Parade retail strip as a separate area within the wider Bondi Beach Town Centre in providing local shops, services and residential accommodation for day visitors and the local community. (b) To increase access links between Campbell Parade and Gould Street to encourage pedestrian movement that supports local shops and increase the retail frontage. (c) To maintain the mixed‐use character in the centre by locating small shops and services at ground level and level one with a diversity of residential accommodation over above. (d) To ensure new development and major renovations are consistent with the existing character of the area. (e) To minimise heritage impacts on identified heritage items and conservation areas within this and adjoining areas.
The controls for the character area relevant to the application are: (a) Land use (i) Developments are to retain the mixed use character of the area by locating commercial at ground and 1st floor level and residential above. (ii) New developments should provide pedestrian through site access links between Campbell Parade and Gould Street. (a) Height and Bulk (i) A maximum of 4 storeys is permitted except for buildings fronting Curlewis Street, Beach Road or the western side of Gould Street where a maximum of 3 storeys is permitted. (ii) A maximum external wall height of 12.5m is permitted except for buildings fronting Curlewis Street, Beach Road or the western side of Gould Street where a maximum of 10m is permitted. (iii) An attic level or part additional floor may be permitted. (b) Setbacks (i) Buildings within the B4 - Mixed Use zone are to be built to the street edge with no setbacks. (ii) Buildings are to be built to the side boundaries for minimum 10m from the front street wall (iii) Where a building is to be extended by the construction of additional floors, the new section is to be setback from the existing façade line by a minimum distance of 3m. (iv) Attic levels or part additional floors must be setback minimum 3 metres from the street wall.
State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP65) applies to the application and is relevant to the contentions in the case. Clause 28(2) requires a consent authority to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration): (a) the advice (if any) obtained from the design review panel, and (b) the design quality of the development when evaluated in accordance with the design quality principles, and (c) the Apartment Design Guide.
The Apartment Design Guide (ADG) is called up under the provisions of SEPP65.

The issues

The contentions in the case are that the proposed development is an overdevelopment of the site due to its failure to comply with development standards and controls, in particular Building height and Design quality principles 2 and 3 of SEPP65; the proposal results in poor amenity for the future occupants of the development and existing and likely future neighbouring properties and is contrary to Principal 6 of SEPP65.
The contention that related to additional information has been addressed by the applicant through the provision of additional plans that demonstrate FSR calculation and the hourly view from the sun diagrams however the Council continues to press the contention relating to overshadowing.

The evidence

The hearing commenced on site with evidence heard from representatives/owners of premises in the vicinity of the site.
The first represented owners of an apartment building to the northwest of the site in Hall Street with evidence given within Unit 508. The issues raised concerned non-compliance with the building height development standard in the LEP and the number of storeys (four storeys) and external wall height (12.5mmaximum) control in the DCP; the impact of the additional building bulk that arises on views from the apartments to the iconic Bondi Beach.
The second person is the owner of an adjoining site to the immediate south. That site has frontage to Jaques Avenue and has gained recent development consent for the construction of a five storey mixed use development. He advised that he considered the design of the development was appropriate other than the breech of the height control and stated he had to comply with the development standard and expected the applicant should too. If approval was granted to the additional level he would also seek to increase the height of the buildings on his site recognising potential impacts that would be caused to adjacent properties. He was concerned about the narrow access to the site; difficulties associated with servicing and garbage collection and in particular the solar impacts arising from the additional floor that is proposed.
Expert town planning evidence was heard from Mr S White for the applicant and Ms A Rossi for the Council.
They agree the amended proposal has reduced the apartment numbers from 30 to 29 and the FSR to 2.89:1 so that the contention regarding floor space ratio has been resolved. Whilst they agree that it is desirable to endeavour to fulfil the density allowance provided for the site they do not agree that it is possible in all circumstances to achieve the maximum FSR. Ms Rossi says that not every site may be able to achieve the total allowable FSR, particularly if it contributes to creating amenity impacts as well as an undesirable precedent in varying a development standard and that achieving that maximum is not an as-of-right and in the circumstances of this case is not appropriate.
It is agreed that the deletion of the upper level would result in an FSR of 2.66:1 and based on the current design, the development would it not achieve the maximum 3:1.
There is also no agreement on whether the development is of a similar scale to adjacent properties.
Mr White cites the objectives of the B4 zone and in particular objective (a) which seeks to integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. He also references the Council's Design Review Panel (Panel) which, in its report to a meeting of 2 November 2015 when considering the original application stated: The panel understands that this proposal complies with a permissible FSR, and that effectively the floor space has been relocated from the lower floors to the rooftop to create some amenity for the lower floors this is not an unreasonable approach. Some good contextual analysis has been provided as part of the pre-DA package. It is incumbent upon the applicant to demonstrate that those parts of the proposal that exceed these height standards are not disadvantaging in other properties in the vicinity. The visual study prepared again does not seem to be representative of the range of outlooks in which the building would be visible (for instanc there are insufficient views in Hall Street and from Gould Street and Jaques Avenue). There should be views from the public domain on the slopes above down over the roofscape.
In relation to density the Panel stated: The Panel understands that the FSR of the proposal matches the permissible FSR of 3:1, although to achieve this FSR, it breaks the height limit as noted above. The Panel considers that it is desirable to achieve the available FSR so as not to squander the urban potential of such well-located sites. However, for the additional height to be justified the design should be excellent and there should be no adverse impacts caused by the additional floor space. The Panel notes that the removal of the top floor of the building would almost reduce the FSR of the building below compliance level. The Panel accepts the architect's demonstration that it is undesirable to have any more footprint or floor space within the height limit the panel supports the applicant's approach of reorganising the permissible FSR that are discussed throughout this report.
The council's ultimate determination of the application had regard to the Panel's recommendations however did not uphold the written request under cl4.6 of the LEP to vary the building height development standard and therefore required the deletion of the top floor.
In relation to character, Mr White said the Bondi Beachfront Area broadly comprises building heights between 3 to 5 storeys, with some exceptions of buildings ranging between 6 to 8 storeys. Street building height of 3 to 5 storeys exist within the Campbell Parade Centre between Lamrock Avenue and Hall Street and 3 to 4 storey street wall height along Hall Street, define the prevailing built form character close to the site.
Ms Rossi says the predominant building forms in this locality and in particular in the Bondi beachfront area affected by the 15m building height and 3:1 FSR controls consist of buildings predominantly up to 5 storeys in building height (with some examples above this, up to a maximum building height of 9 storeys) many are Heritage listed (in the LEP) or considered contributory buildings (in the DCP) with this area forming part of the Urban conservation area recognised for the interwar and art deco style architecture.
The exception for the limited number of buildings above five storeys in height is based on those building forms existing prior to the relevant planning controls being introduced. In her opinion the proposed development is not compatible with the bulk, scale and streetscape and existing character of the locality due to the breech in height and proposal for GFA to be accommodated above the height of the surrounding locality. The GFA above the height plane result in unacceptable amenity impacts in terms of overshadowing, view impacts visual and acoustic privacy and the deletion of the upper level of the development was a fundamental reason for the support of the application. Approval of a 6 storey building would set an undesirable precedent.
In her opinion, Ms Rossi says that there are other areas of the site capable of accommodating additional GFA below the height control of 15m, for example along the access handle and also in the loading area. The access handle leading to the site from Jaques Avenue is sought to remain unbuilt upon, with the exception of providing vehicular access to the rear of the development. This area measures 3.025m wide at the Jaques Avenue frontage and 12.1 m in length representing approximately 36.9m² in area, or 110.6m² of GFA attributable to the overall site potential to achieve 3:1 FSR. Accepting the access handle is narrow and has constraints, she argues that a well-designed, thin infill development could be accommodated in the space above the vehicle access.
The DCP does not call for loading facilities and the proposal provides a loading bay at ground floor level which is excluded from GFA calculation thereby its exclusion allows for further reduction in GFA despite this area contributing to the overall bulk of the building. She concludes that other opportunities exist elsewhere within the site to assist in maintaining FSR compliance without the resultant unacceptable amenity impacts, breach of height controls and setting an undesirable precedent as the proposal has an unacceptable urban outcome.
Mr White does not agree with Ms Rossi's suggestion that development over the access handle would be a viable development nor would it allow for amenity. That is because the width of the space is 3.025m, width is 12.19m and he raises the following concerns:

The width of the space when allowing for structural building requirements would reduce to anywhere between 2.5 and 2.7m which is below the minimum ADG provision for a bedroom with (3m) or living room (3.6m), creating an unacceptable level of amenity and functionality.
The same functional and amenity concerns would apply if the space were to hypothetically be used for other permitted uses such as serviced apartments, boarding house or commercial space.
If access to the access handle's space was to be from below, there would not be sufficient with for a vehicle to enter the site and the basement carpark.
Lateral access to the space would only be possible if a passageway was extended from the current building circulation and this would have the effect of eliminating one apartment on each level to meet the required width of access passageway.

Context

The experts agree the development is situated in a locality that is characterised by different forms, and to some extent, roof heights however disagree as to whether the upper level is compatible with that surrounding development or whether it provide a high quality urban form that does not detract from the decide streetscape outcomes sought.
Mr White cites a number of properties, the majority of which are located in Campbell Parade with one in Lamrock Avenue that comprise three and four storey street wall height with one recessed upper level. He notes the DCP control at 2.1.7(d) which requires infill buildings to build to the prevailing street wall height then setback a minimum 3m to any upper floors and says the proposed development is consistent with that control. Despite the DCP maximum 12.5m street wall height and 15m overall building height development standard in the LEP, there is not an existing uniform building height within the Bondi Beachfront Area. He notes that while the buildings either side of the site (being Ravesi's Hotel and 16-18 Hall Street) are four storeys, they are an equivalent height of a five-storey contemporary mixed use apartment building, as shown in the elevation of the proposed development as shown below.
He says an equally important context consideration is of views from properties on the upper slope looking down to Bondi Beach as the site and its surrounding buildings are overlooked from multiple properties on the upper slope. It is evident that the building profiles and roof forms varry considerably from these viewpoints and the recessed upper level will provide for variation to the prominent street wall building form, providing a visually interesting building mass and relief to the overall scale when viewed in the local context. While the proposed part 6th floor of the development will be higher than buildings in the immediate vicinity, when factoring in the proposed building aligning with the prevailing street wall height of adjoining buildings coupled with the larger upper level setback from the street, in the broader townscape of Bondi Beach, the additional part storey would sit comfortably within its urban context, will not appear out of character with the varied building forms, heights and roof profile and whilst the recessed upper level will be visible from certain wider context vantage points, it will not be a dominant building element.
Ms Rossi says the upper level is not compatible with existing surrounding development having regard to the Bondi Beachfront Area where the predominant built forms are building height of 15m or less (excluding roof services/plant). The predominant setback pattern in this area comprises nil setback to street frontages to provide a continual street wall, with some examples evident of the upper level being setback from the street wall whilst still maintaining a building height of 15m. She says the infill control referred to by Mr White limits development in the area to 4 storeys, with a 12.5m street wall height with additions above this to be setback from the street frontage. In the circumstances of this case and having regard to the adjacent development she agrees that is acceptable that new development on the site should align with the parapet height of these adjoining buildings with a nil front setback to Hall Street which would exceed the 12.5m DCP control however she maintains the overall development should be limited to this parapet height so as to align with the predominant streetscape form in this section of Hall Street noting that this is also consistent with the just completed building opposite the site at 11 - 13 Hall Street.

Amenity

There is no agreement as to whether the redistribution of floor space to the 6th storey is the best means to achieve a FSR close to the allowable maximum.
Mr White says the proposal involves an innovative and tailored design for the site by utilising dual storey apartment modules to maximise apartment amenity in this challenging dense infill site the design proposal incorporating a part sixth storey enables an increased side setback that will achieve a reasonable separation between buildings and maximise environmental amenity outcomes for apartment and the neighbouring development, within the site constraints while also achieving close to the allowable FSR.
Apartment types 1.01 to 4.01 benefit from an increased side setback allowing daylight into the internal wall of the apartment. While this constitutes a departure from the applicable zero side boundaries setback provision of the DCP, strict compliance in this case would achieve an inferior apartment amenity. The increased setback of the building from 16 - 18 Hall Street allows improved amenity, in terms of natural daylight access and privacy for future residents in apartment and the proposal exceeds the ADG design criteria provision for solar access, 23 of 29 apartments (80%) achieving two hours of solar access and natural ventilation to 21 of 29 apartments (72%). To achieve a reasonable FSR outcome close to the maximum in a compliant building height form, the scheme would have reduced side and rear setbacks, resulting in a diminished ADG performance against the solar access and natural ventilation objectives. The Panel supported the re-massing design approach comprising the T-shaped primary organisation of the building form which has resulted in creating a part additional floor.
Ms Rossi says visual and acoustic privacy concerns are envisaged having regard to the large balconies to the upper level and because they are associated with residential units (unlike a communal outdoor area that was recommended by the Panel) is not possible to limit the number of persons that use these spaces or the time of day they are used. The location of balconies and window openings to the upper level also enable overlooking to occur with opportunities for persons using those levels to peer directly into adjacent opening of neighbouring buildings. In terms of solar access, the proposed upper level will have greater impact on shadows cast to neighbouring buildings as evidenced in the shadow analysis prepared by the applicant, the additional level of the building results in additional shadow being cast over 2-4 Jaques Avenue, being the worst affected property, between 8 AM and 2 PM that would otherwise not occur with a height compliant building. This she considers to be unacceptable.
In terms of acoustic impacts, Mr White says the proposed development appropriately locates uses within adjoining apartments to avoid conflict between quieter and noisier areas as required by the DCP. The upper level terraces are for private use and not communal use which is likely to limit potential noise impacts if the terrace were to be common property for occupants of all 29 apartments.
The applicant proposed the introduction of landscape planters along the western side of the front terrace of unit 4.09 and a balustrade to the rear south elevation of the upper limit level terrace of unit 4.08 to minimise overlooking of adjoining properties. Ms Rossi said that these conditions go some way to assist in reducing the adverse amenity impacts.
Mr White says those shadow diagrams show that the part upper storey only fall on lower part of the building external and not onto any windows or private open space. Therefore he says no adverse shadow impact arises from the additional upper level to the residential building at 102-106 Campbell Parade. Similarly, whilst there is additional overshadowing to the backpackers accommodation at 108-110 Campbell Parade, that is a bathroom window and therefore does not present adverse amenity impacts.
In relation to 2-4 Jaques Avenue (as approved) he says the plans illustrate impact to 3 of the 4 habitable window bays on the top (fourth level) which equates to 3 apartments at 8AM. The fourth (eastern) window bay is unaffected by the proposal. Of those window bays impacted, each will receive more than two hours of direct sunlight to over 50% of the window face during 9AM to 11AM in midwinter. The third level apartment windows will have additional shadow cast on to them at 9AM. By 10AM only an inconsequential amount of shadow will fall on one window. Two habitable window bays of the second level apartments will receive additional shadow impacts at 11AM and which will be gone by 12 noon and finally, one window bay in the first level apartments will be impacted with additional shadow, a second window bay will have a very minor impact that is considered inconsequential.
The experts assessed the impact of the development on solar access enjoyed by the development approved for 2-4 Jaques Avenue and agreed that when the application was lodged, it was said that 100% of the apartments achieved the required two hours solar access however, their assessment was that this was an incorrect proposition and only 27 of the 33 apartments would achieve the two hours. The proposed development will result in units 102, 103 and 203 not achieving two hours which results in 24 of the 33 units achieving the two hours representing 72.73% of the units and thereby exceeding the 70% required under the provisions of the ADG.
Ms Rossi says this is not an acceptable outcome because the impact of the additional overshadowing the result of non-compliance with a development standard and the public should be assured on with relevant controls.

Views

A Visual Impact Study (VIS) was prepared and forms part of the exhibits, exhibit G and H. The photographs provided in study have been assessed by the planning experts.
Mr White says that in terms of views from the apartment buildings in Hall Street that were inspected by the Court, the photo montages illustrate that the view from these apartments is of the Bondi Centre and the ocean in the background, panoramic views being available from the balcony. The upper level will remove a small fraction of the distant water vista by extending beyond the existing roof top however he considers that impact to be minor and insignificant in the context of the view expanse and the fact that it would blend into the varied roof line height and forms that are evident from this outlook. He concludes the development has an acceptable visual impact on the surrounding locality.
When viewed from the public domain and surrounding streets, the upper level is not visible in many instances. Where the upper level is visible, it is not particularly prominent, does not remove or dramatically impact on iconic views and will achieve an harmonious relationship with the varied heights and roof forms in the Bondi Beachfront area.
Ms Rossi acknowledges that there are some additional impacts to views from nearby properties saying that whilst they are not devastating, they are the result of a non-compliance with a development standard that would otherwise not occur should the building comply with the 15m building height control. She maintains that any additional impact as a result of a breach to a development standard is unreasonable and undermines the integrity of the control, particularly for a new development where compliance is achievable.
She says the main visual impact of the development is the view from the public domain in Gould Street where the upper level is perceptible and that the impact is a negative feature of the development that increases the building bulk and scale when viewed from that public domain.
The experts did not oppose additional conditions that address waste management and privacy.

The clause 4.6 objection

A written request pursuant to the provisions of clause 4.6 of the LEP has been prepared to address the non-compliance with the height of buildings development standard (Exhibit E). The request relies on a massing strategy, the fact that the development complies with the FSR development standard, provides a consistent street frontage height along Hall Street, demonstrates design excellence and results in no adverse environmental impacts.

Conclusion and findings

For consent to be granted the Court must uphold the written request in relation to the building height development standard. That is a precondition to consent. Clause 4.6 is in the following terms: (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence…
This imposes a number of tests, the first that compliance with the development standard must be unreasonable or unnecessary in the circumstances of the case, the second that there are sufficient environmental planning grounds to justify contravening the development standard, the third that the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3) and the fourth, that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. In addition, satisfaction of those matters that must be considered by the Secretary in determining whether concurrence should be granted is required.
The written request has been prepared utilising the guidelines of Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827. That decision sets out five ways of demonstrating that compliance with a development standard is unreasonable or unnecessary. They are: 1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. the underlying objective or purpose is not relevant to the development with the consequence that compliance in unnecessary; 3. the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable; 4. the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consent departing from the standard; 5. the zoning of particular land was unreasonable or inappropriate so that a development standard appropriate for that zoning was also unreasonable or unnecessary is applied to the land.
The request relies on the first test and assesses the proposal against the objectives of the B4 zone and the Height of buildings development standard.
In relation to the zone objectives, the first is to provide a mixture of compatible land uses and the request states the development is consistent with that objective in that the proposal provides a mixture of retail, residential and commercial land uses which have been selected and integrated to complement the surrounding land uses. The retail floor space at ground level will maintain activation of Hall Street, consistent with Part E2 of the DCP and the residential uses provide a range of one bedroom, two bedroom and three-bedroom dwellings.
The second seeks to integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.
The request states that the proposal seamlessly integrates a variety of uses within a high density mixed use area with provision of residential, commercial and retail uses providing diversity. The site is situated within 200m of public transport routes, including bus routes connecting to Bondi Junction and the CBD. Bicycle parking spaces are being provided within the basement carpark to encourage walking and cycling and the proposal will increase the supply of residential accommodation within 200m of public transport and Bondi Beach's public domain.
The third objective is to encourage commercial uses within existing heritage buildings and within other existing buildings surrounding the land zoned B3 Commercial Core. Whilst the site is not a heritage building nor surrounded by land zoned B3 Commercial Core it is located adjacent to heritage items and a heritage conservation area however the author maintains it will not significantly impact such items or other items of heritage significance within the surrounding locality.
Interestingly, the request introduces a fourth objective however no such objective forms part of the LEP and no consideration of the comments associated with this superfluous issue have been made.
There are four objectives to the Height of building development standard however only two are relevant, a and d as b and c apply to the Bondi Junction Centre only. (a) to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties.
The applicant submits in the written request that the height is appropriate given the scale of the Bondi's existing built form, particularly given the site's location and separation from other buildings which exceeded the 15m height control including the Bondi, the Boheme and the Swiss Grand hotels. The shadow diagrams demonstrate the increased height above the 15m standard will have no adverse amenity impacts on adjacent residential properties, particularly areas of private open space. (d) to ensure that buildings are compatible with the height, bulk and scale of the existing character of the locality and positively complement and contribute to the physical definition of the street network and public space.
In regard to compatibility, ii is submitted that the parapet of the proposal is consistent with the height of the neighbouring development and the visual impact analysis and supporting documentation demonstrates that when viewed from the opposite side of Hall Street the upper level has been sufficiently setback so that it is not visible. Where the upper story is marginally visible, it is not prominent and contributes to modulation of the roof form providing a positive contribution to the Hall Street streetscape through improved ground floor activation a long Hall Street completing and enhancing the retail strip between Campbell Parade and Jaques Avenue.
It is argued a superior outcome for both future and adjoining residents is achieved through the redistribution of the floor space from the lower levels as explained in the massing strategy and that the departure from the development standard arises to the size of the subject land and the provision of residential units which require access to natural light and ventilation rather than being an overdevelopment of the site given that the FSR is well within the permitted range. The scale of the proposal consistent with surrounding development, noting that the street frontage height to Hall Street is consistent with the neighbouring properties and the sixth level has been generously setback from the parapet ensuring that it prominent.
In addition to consideration of the objectives of the zone and development standard, the applicant's request has provided other reasons why it says that compliance with the building height control would be unreasonable and unnecessary in the circumstances of the case. It accepts that the council has not abandoned the development standard but argues that strict application would prevent redevelopment of the site which seeks to deliver the following key outcomes:

A superior outcome for the future residents and adjoining residents through the redistribution of the floor space from the lower levels. The massing strategy results in a superior outcome for the apartment amenity and adjoining properties, without compromising the amenities of surrounding site or the public domain.
A departure from the height of buildings standard arises due to the size of the subject land and the provision of residential units, which require access to natural light and ventilation. The departure is not the result of overdevelopment, given the FSR is well within the permitted range.
The scale of the proposal is consistent with surrounding development, noting that the street frontage height to Hall Street is consistent with the neighbouring properties. The sixth level has been generously setback from the parapet, ensuring that it is not prominent.
The proposed waste management strategy is to demonstrate an underground waste storage system in Jaques Avenue to accommodate the additional bins resulting from the development however given the establishment cost, the provision of this facility is contingent upon the approval of the sixth storey.
The height and FSR control under the LEP do not align and strict compliance with the standard would result in a gross underutilisation of FSR.

In relation to whether there are sufficient environmental planning grounds to justify contravening the development standard, the request relies on the view analysis and solar impact diagrams and concludes that the proposal is consistent with the physical context of Bondi, with the sixth storey carefully positioned so that it is neither prominent nor visible from most locations and where it is visible, the roof design of the upper story provides modulation. The applicant contends that the solar assessment demonstrates that there is no significant adverse solar impact associated with the additional height.
Having regard to the evidence before me, I am satisfied that the written request adequately demonstrate that the objectives of the zone and the building height development standard are met and therefore compliance with that standard would be unreasonable and unnecessary in the circumstances of the case.
My assessment of the impacts of the additional building height align with those of Mr White and I agree that the additional storey when viewed from those apartments further along Hall Street will have a negligible impact in terms of the panoramic view enjoyed from those properties and will in fact fill in an area which in most cases presents as the rear of those buildings that front Campbell Parade. I accept there will be a minor increase to the solar access enjoyed by the approved the development on the adjoining site fronting Jaques Avenue however note that development will continue to meet the requirements of SEPP65 and the ADG.
Whilst the additional storey will be visible from a limited area within the public domain, I do not consider that that in itself is a reason why consent would not be granted.
The battleaxe handle forms part of the site area and, having regard to the evidence, I agree that development of that portion of the site would not be appropriate due to the increased amenity impacts that would arise.
I do not place any weight on the applicant's proposal to trial a new method of waste disposal in my determination of the clause 4.6 request.
In upholding the written request, it is appropriate to undertake a merit assessment of the application and the remaining contentions.
Having regard to the evidence before me, and taking into consideration the siting of the adjoining development, particularly the development to the immediate west of the site which contains a number of windows in close proximity to the boundary I accept the applicant's evidence that the design of the proposal is satisfactory. Imposition of the agreed conditions that provide for increased separation through the reduction in the useable balcony areas at the upper levels is appropriate and resolve the contentions that related to the design principles of SEPP 65.
I have addressed the issue of the views above and do not consider that any of the matters raised in the submissions received by the Council require any further amendment or modification to the proposed development.

Commissioner Sue Morris

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: 14 March 2017

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Judgment (13 paragraphs)

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