Glenayr Avenue Pty Ltd v Waverley Council

Land and Environment Court (NSW)|2013-10-22|Before: Mr J

Mr M Staunton (Respondent) Landerer & Company (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10273 of 2013

Judgment 1This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Waverley Council (council) of a development application (DA-575/2012) for a shop top housing development at 87 to 89 Glenayr Avenue and 13 to 15 Warners Avenue, Bondi Beach (site). 2The key issues in contention between the parties are the height, bulk and scale of the proposal and whether the requirements for an exemption to the height and floor space ratio (FSR) standards in Waverley Local Environmental Plan 2012 (WLEP) are satisfied.

Background and proposal 7A development application (DA 56/2008) for the site was approved by the Court on 7 October 2008 (Approved Development) under the previous planning controls (Waverley Local Environmental Plan1996) when the site was within two zones. As I understand, the Approved Development was an agreement under s 34 of the Land and Environment Court Act 1979 (LEC Act). The development comprised a mixed use three storey development (basement parking, ground level retail and residential units above) on the part of the site zoned Business Neighbourhood 3c (87-89 Glenayr Ave) and a dual occupancy on the Residential 2(b) part of the site (13-15 Warners Avenue). The FSR for the entire site was approved at 1.68:1 and a height of 11.7m (upper most point, or 10.88m to Glenayr Ave frontage). This consent is still current. 8A development application (DA 197/2011) for a three to four storey mixed use development was refused by council on 23 October 2012. The total FSR proposed for the entire site was 1.88:1 and an overall height of 12.825m. 9The development application was lodged on 31 December 2012. The Court granted leave for the applicant to rely on amended plans on 30 July 2013. Further amendments were made during the hearing to address internal amenity and proximity of bedrooms to the lift core and the provision of a loading dock. 10The amended development application proposes the demolition of existing structures and the construction of a new four storey mixed use development comprising:

Basement - parking for 25 cars, 32 bicycles, 6 motorcycles
Ground floor - commercial/retail area, residential lift lobby, plant rooms, loading dock and garbage room.
First floor - 7 x one bedroom units and 2 x two bedroom units.
Second floor - 7 x one bedroom units and 2 x two bedroom units.
Third floor - 5 x two bedroom units. 11The application proposed a Voluntary Planning Agreement (VPA) to upgrade the open space that is immediately opposite the site to the north. However, the terms of the agreement have not been finalised nor agreed to by council. Nevertheless, the application has been considered on the basis that any approval would include improvement works to the open space.

Planning controls 12The site is zoned B1 Neighbourhood Centre (Business Zone) under Waverley Local Environmental Plan 2012 (LEP 2012). Shop top housing is permissible with consent. Shop top housing is defined in the Dictionary of LEP 2012 as: shop top housing means one or more dwellings located above ground floor retail premises or business premises. Note. Shop top housing is a type of residential accommodation-see the definition of that term in this Dictionary. 13A number of other forms of residential accommodation, such as residential flat buildings are prohibited within the B1 Neighbourhood Centre zone. 14Clause 2.3(2) of LEP 2012 requires that the consent authority must have regard to the objectives for development in the zone. 15Clause 4.3(2) of LEP 2012 permits a maximum building height of 9 m and cl 4.4(2) permits a maximum FSR of 1:1. The proposal has a height of 13.02m and an FSR of 2.233:1. The applicant has submitted a written request in accordance with cl 4.6(3) of LEP 2012 that seeks to justify the contravention of these development standards. Clause 4.6 relevantly provides: 4.6 Exceptions to development standards (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 Director-General has been obtained. (5) In deciding whether to grant concurrence, the Director-General 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 Director-General before granting concurrence. ...... 16Land to the west of the site and on the opposite side of Blair Street is within Zone R3 Medium Density Residential. It has a height limit of 9.5m and a FSR of 0.6:1. Other parts of the surrounding R3 Medium Density Zone have a height limit of 12.5m and a FSR of 0.9:1. 17The parties disagree about the proposal's compliance with certain provisions in Waverley Development Control Plan 2012 (DCP). These include general design considerations in Part B, such as loading facilities (s 7.2) and provisions for residential development in Part C2, such as length and depth of buildings (s 2.6); building separation (s 2.6); landscaping (s 2.12); communal open space (s2.13); private open space (s 2.14) and solar access and amenity (s2.15). Glenayr Avenue is identified as a Neighbourhood Centre in the hierarchy of community centres in Part E3. Section 3.1.8 of this part identifies the existing character and built form and desired future character objectives for the centre. 18State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) establishes ten design principles for residential flat development. Under SEPP 65, the Residential Flat Design Code (RFDC) must be considered. Part 3 of SEPP 65 provides for the establishment of Design Review Panels. The Waverley Design Review Panel considered the application on 4 February 2013.and and concluded in its report: The panel reiterates that a good proposal for this important site is required, and that some flexibility with the current planning controls could be justified. However this DA needs substantial design resolution to confirm its construction, performance and qualities, and to satisfactorily meet SEPP 65 requirements.

Evidence 19The Court visited the site and surrounding area and heard expert evidence from: for the council

Mr G Boston, planning
Ms G Morrish, urban design
Mr G Kennedy, traffic for the applicant
Mr T Moody, planning
Prof GP Webber, urban design
Mr R Varga, traffic

Clause 4.6 exemption to height and FSR standards in LEP 2012. 20Mr Moody prepared a request for an exemption to the variation of the Height (cl 4.3) and FSR (cl 4.4) standards in LEP 2012. In each request, he addressed the matters required by cl 4.6(3) which provides: (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. Height standard (clause 4.3) 21Mr Moody considered that strict compliance with the Height standard is unreasonable and unnecessary principally because the proposal meets the objectives of the standard. The objectives of the height standard in cl 4.3(1) of LEP 2012 which are relevant are: (a) to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties, ...... (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. 22In Mr Moody's opinion, the overall height of the development preserves the environmental amenity of neighbouring properties (Objective (a)) as there would be no unreasonable impacts of privacy, overshadowing or visual bulk. 23Mr Moody stated the proposed development would meet Objective (d) as: (it) will be compatible with the height bulk and scale of adjoining 3 storey developments still giving due recognition to the significance of the subject site compared to adjoining properties. The "recessed" 4th storey on the northern elevation will give prominence to the subject site compared to its neighbours while still ensuring compatible building form on the subject site. Furthermore, the additional height, albeit in a recess form on the northern elevation, will provide a clear definition from this important corner site consistent with accepted Planning guidelines. The provision of an additional 4th storey on the Glenayr Avenue frontage (not in a recessed form) recognises this important gateway site as the entrance to the village centre. 24Mr Moody also considered compliance with the Height standard to be unreasonable and unnecessary because the proposal will provide an appropriate transition with the adjoining residential flat buildings to the west, sits well in the streetscape and contributes to the character and vitality of the "Seven Ways" intersection by removing the existing mechanics workshop. The proposal would also have a similar visual impact as the Approved Development. A development that complied with the Height control "would not sufficiently recognise the importance of the site as an important corner gateway location adjacent to the significant 'Seven Ways' intersection" nor would it adequately define the corner and street network. Furthermore, the proposal meets the objective for the Glenayr Avenue Neighbourhood Centre in s 3.1.8 of Part E3 of the DCP "to ensure an appropriate architectural design and scale for corner site development" and that "The 'Seven Ways' intersection of Blair Street and Glenayr Avenue should stand as the focus of the Glenayr Avenue precinct. This intersection has the potential to be an even more vibrant and active public space". 25Mr Moody referred to the publication entitled "Mixed Use in Urban Centres - Guidelines for Mixed Use Development" (the Guidelines) which include that mixed use developments on corner sites should be allowed to extend 1-2 storeys higher than the relevant planning controls. The Guidelines are referred to in the RFDC, which, in his opinion, also reinforces the principle that "corner sites can accommodate higher densities than midblock sites". 26For similar reasons to those above, Mr Moody concluded that there are sufficient environmental planning grounds to justify contravening the development standard. 27Mr Boston considered that the proposal does not meet objective (a) as the additional building height above the standard would be clearly discernable and have greater visual impact than a development that complied with the Height standard. He also considered that the additional height would reduce the level of solar access more than a compliant building. He accepted that the privacy impacts from the fourth floor western terrace could be addressed through the provision planter boxes or deletion of the terrace. 28Mr Boston also considered that the proposal does not meet objective (d), as the existing character of the immediate locality is predominantly two to three storey buildings. While there are some four storey buildings or elements, they are the exception. In his opinion, the two to three storey character is sought to be maintained by the 9m height control in cl 4.3 of LEP 2012. 29Mr Boston notes that neither WLEP 2012 nor the Desired Future Character objectives for the Glenayr Avenue Neighbourhood Centre (cl 3.1.8 of Part E3 of the DCP) identify the site as of "gateway" significance. On the contrary, the DCP refers to an existing character with corner buildings providing a transition between the commercial uses on Glenayr Avenue and adjacent residential properties through a reduction in height and the incorporation of setbacks, together with the need for development to address the residential side streets. He considers the objective for an appropriate architectural design and scale for corner sites should be read in the context of the existing transitional heights and building forms. The DCP objectives identify the intersection as a focal point for the provision of a vibrant and active public space, not a "gateway". Furthermore, the Glenayr Avenue Centre is identified as a "neighbourhood centre", which is below "village" and "small village" in the hierarchy of centres and not one which, in Mr Boston's opinion, warrents "gateway urban design principles". 30Ms Morrish and Professor Webber agree that a three storey scale/emphasis is an appropriate design response for the site. However, they held different opinions about the appropriateness of proposal within its context and the planning controls. Professor Webber also considered that the site is a prominent corner location at the "Seven Ways" intersection at the "gateway" to the Glenayr Village, which should be recognised. He considered the proposal to be compatible with the existing character as its parapet is similar in height to the residential flat building and the fourth level is only about 1.2m above the parapet and is recessive and not easily viewed. 31Ms Morrish did not agree that the site was prominent to the extent that it warrants an extra level. In Ms Morrish's opinion, the adjoining open space fronts the "Seven Ways" intersection and it is important to maintain the landscape character of the corner rather than to mark it with a landmark building. She considered that the consistent height control for land that fronts the intersection appears to seek a height and scale relationship between the built form and the public space. 32Ms Morrish noted that the RFDC does not refer to the principles for corner sites in relation to height but that additional density on corners is appropriate in some contexts due to the access to daylight and outlook from two street frontages. However, it is not sought by the planning controls for this area where the height for the commercial centre is less than for the residential. The proposal exceeds the height control in LEP 2012 by about 3.6m (44.6%) and the parapet, which is partly above the height limit, is clearly visible. While the parapet restricts the visibility of the fourth level, this is only from certain vantage points, from others it is also clearly visible. Floor Space Ratio 33Mr Moody considered that strict compliance with the FSR standard is unreasonable and unnecessary principally because the proposal meets the objectives of the standard. The objectives of the FSR standard in cl 4.4(1) of LEP 2012 which are relevant are: ...... (b) to provide an appropriate correlation between maximum building heights and density controls, (c) to ensure that buildings are compatible with the bulk, scale, streetscape and existing character of the locality, (d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality. 34Mr Moody considered that due to the particular circumstances of the site discussed above, there is an appropriate correlation between the height and FSR that meet objective (a). For similar reasons to those outlined in his request to vary the Height control, Mr Moody concluded that the proposal met Objectives (c) and (d) of the FSR control. 35For the reasons outlined above, Mr Boston does not agree that the location of the site warrants the extent of variation of the FSR control (120%), which effectively results in an up zoning of the site. He acknowledged, that some degree of flexibility should be applied to the FSR control to better correlate with the height control, but not to the extent proposed and it therefore does not meet objective (a). For similar reasons to those outlined in his response to the Request to vary the Height control, Mr Boston concluded that the proposal did not meet Objectives (c) and (d) of the FSR control.

Findings 36Clause 4.6 of LEP 2012 permits exceptions to development standards in the plan, including the Height the FSR controls. It is similar to an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) in that it is a precondition, which must be satisfied before the proposed development can be approved. 37Under cl 4.6(4)(a), consent must not be granted unless the Court is satisfied of two matters. Firstly, that the Applicant's written request has adequately addressed the matters required to be demonstrated in subclause (3). Secondly, that the proposed development will be in the public interest because it is consistent with the objectives of the standard and the objectives for development within the B1 Neighbourhood Centre zone. Does the Applicant's written request adequately address the matters required to be demonstrated in clause 4.6(3)(a) of LEP 2012? 38Clause 4.6(3)(a) of LEP 2012 requires the applicant's written request to demonstrate that "compliance with the development standard is unreasonable or unnecessary in the circumstances of the case". It uses the same language as State Environmental Planning Policy No 1 - Development Standards (SEPP 1). Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 deals with the requirements to uphold an objection under SEPP 1. At [42] to [43], His Honour discusses ways of establishing that compliance with the standard is unreasonable or unnecessary, relevantly he states: 42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard... 43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served). 39The principles in Wehbe are relevant to establish whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case as required by cl 4.6(3)(a), namely whether, despite the non compliance, the proposal meets the objectives of the standard. 40The experts disagree on whether the proposal meets the objectives of the Height and FSR standards in LEP 2012. The key disagreement relates to whether the particular circumstances of the site warrant the degree of variation proposed. The experts for the applicant rely on the corner location of the site on "Seven Ways" intersection rendering it suitable for a "landmark" or "gateway" building, which can therefore be higher than but also compatible with other buildings. Although, they consider the fourth level to be recessive and not clearly visible in the surrounding area. 41The council experts do not agree with this proposition and consider that the site is not on the corner of the "Seven Ways" but on the corner of Warners Road and Glenayr Avenue. It and other corner sites in the Glenayr Neighbourhood Centre warrant an appropriate architectural design and scale but not a building of the height and FSR proposed. In their opinion, the parapet and fourth floor, which exceed the height limit, would be visible from certain vantage points. The proposal would be of greater height, bulk and scale than other buildings in the locality and is not what is sought by the planning controls. 42I accept the opinion of the council experts. Objective (d) of the Height control and Objective (c) of the FSR control are similar in that they seek to ensure that buildings are compatible with the ...... existing character of the locality, principally in height, bulk and scale. 43The existing character of the Glenayr Neighbourhood Centre is described in s 3.1.8 of Part E3 of the DCP as: The centre comprises two areas. The first is a small group of buildings located at the corner of Curlewis Street characterised by two (2) storey Interwar mixed-use buildings. The second area is centred around the 'Seven Ways' intersection which is largely comprised of generous two (2) to three (3) storey Interwar apartment buildings and also notable for its mixed use buildings with ground floor shops and residential storeys above. In addition to the two distinct centres, Glenayr Avenue includes a series of small scale nodes, interspersed with residential development. The 'Seven Ways' commercial centre has good quality local shops and cafes. Three of the buildings addressing the 'Seven Ways' and 83-85 Glenayr Avenue possess intact original shopfronts. Several mixed-use corner sites (commercial ground floor and residential upper floor(s)), assessed as being buildings of historic character are examples of successful transition in form and function between the commercial uses of Glenayr Avenue and the residential character of the side streets. These corner buildings enable a transition by a reduction in height, and the incorporation of a setback, in those (northern) facades while addressing the residential side street. 44The Desired Future Character Objectives in s 3.1.8 generally seek to reinforce the existing character. The objectives are: (a) To maintain the role and character of the discrete sections that make up the Glenayr Avenue centre, including the provision of local shops, services and residential accommodation for the local community. (b) To effectively manage the retail/commercial and residential interface in the centre, and in particular maintain the strong residential character where it currently exists along Glenayr Avenue. (c) To ensure an appropriate architectural design and scale for corner site development. (d) The 'Seven Ways' intersection of Blair Street and Glenayr Avenue should stand as the focus of the Glenayr Avenue precinct. This intersection has the potential to be an even more vibrant and active public space. 45Objective (c) is achieved by maintaining the existing transition of mixed use corner buildings that are lower in height than residential, as set out in existing character and built form statement for the Glenayr Avenue Neighbourhood Centre in s 3.18. This principle reflects LEP 2012 where in the locality of the site, the height limit for the B1 Neighbourhood Centre zone is lower than those for the R3 Medium Density Residential zone. General urban design principles of reinforcing corners with higher buildings are of lesser weight than these specific controls for the site, the centre and its surrounding area. Furthermore, these general principles are not appropriate for all corners and would not appear to be appropriate for the Glenayr Avenue Neighbourhood Centre given its position in the hierarchy of centres in the DCP. 46Objective (d) is achieved by the removal of the mechanical workshop, the proposed residential use with ground floor retail and the upgrading of the open space would contribute to the "Seven Ways" intersection being a focus, and a vibrant and active public space. There is no requirement to mark the site as a "gateway" to Glenayr Avenue by a built form with the height and density to the extent proposed. On the contrary, I accept Ms Morrish's opinion that the public space should be emphasised by maintaining and reinforcing its landscape character and the consistency in the height of buildings which surround it. 47From close views, the dominant height of the existing nearby residential buildings in Blair Street (21-25) is established by the street walls closest to the street, which are below the height of the parapet of the proposal. From wider views, the upper parapets of these residential buildings are more visible and are similar in height to the proposed parapet but are below the overall height set by its fourth level. From these wider views, the fourth level will be visible. These residential buildings are also significantly less wide than the proposal. Overall the proposal will appear of greater height and bulk than these buildings and result in a scale relationship that is not sought by the DCP or LEP 2012. 48Furthermore, there are several corners in the Glenayr Avenue Neighbourhood Centre with mixed use buildings, including the one on the south eastern corner of Glenayr Avenue (106 Glenayr Avenue), which would represent the opposite side of the "gateway" (if one were required) to the Glenayr Avenue Neighbourhood Centre. This building is two storeys with a pitched roof and is significantly lower in height and bulk than the proposal and an appropriate scale relationship would not be achieved. 49The proposal therefore does not meet Objective (d) of the Height control or Objective (c) of the FSR control as its height, bulk and scale is not compatible with the existing character of the locality. Compliance with the development standards is not unreasonable or unnecessary in the circumstances of the case. It therefore follows that I cannot be satisfied, as required by cl 4.6(4)(a)(i) of LEP 2012, that the Applicant's written request adequately demonstrates the matters in cl 4.6(3)(a). Does the Applicant's written request adequately address the matters required to be demonstrated in clause 4.6(3)(b) of LEP 2012? 50Clause 4.6(3)(b) requires the applicant's written request to demonstrate that there are "sufficient environmental planning grounds to justify contravening the development standard". 51The term "environmental planning grounds" is broad and encompasses wide environmental planning grounds beyond the absence of environmental harm or impacts. It is likely to be informed by the objectives of cl 4.6 which provide: (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. 52The objectives seek to provide flexibility in applying development standards to achieve better outcomes for and from developments. To determine whether a better outcome is achieved in allowing flexibility, is likely to involve a consideration of similar matters to those in the aims and objects set out in cl 3 of SEPP 1, namely to provide: flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act. 53The objects in s 5(a)(i) and (ii) of the EPA Act are: (1) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (2) the promotion and coordination of the orderly and economic use of developed land." 54Mr Moody's written requests have not provided sufficient environmental planning grounds to justify contravention of either the height or the FSR control. In both requests, Mr Moody relies principally on the site being a "corner gateway" which should be recognised with a building form, height and FSR that is greater than a development that complies with the controls, the proposal would have a similar visual impact to the previously Approved Development, the existing mechanical workshop will be removed and the site rehabilitated and there are no unreasonable amenity impacts on adjoining properties or the public domain. Mr Moody also referred to the works to the open space, which would be undertaken under a VPA. Consequently, in his opinion, the proposal provides a better outcome for and from the development. 55As previously stated, I do not accept the site is "gateway" or that its location on the corner of Glenayr Avenue and Warners Road is sufficient to justify the extent of flexibility in the application of the planning controls sought by the proposal or that it would achieve a better outcome for and from other developments. The Approved Development was approved under earlier planning controls and is of little weight in the consideration of the current application. The other reasons, proffered by Mr Moody, could also be achieved by a complying development. It therefore follows that I cannot be satisfied, as required by cl 4.6(4)(a)(i) of LEP 2012, that the Applicant's written request adequately demonstrates the matters in cl 4.6(3)(b). Does the proposal satisfy cl 4.6(4)(a)(ii)? 56Clause 4.6(4)(a)(ii) requires satisfaction that the proposal is in the public interest because it is consistent with the objectives of the standard before consent can be granted. 57As stated above, the development does not meet the objectives of the Height and FSR standards. I am therefore not satisfied, as required by cl 4.6(4)(a)(i) of LEP 2012, that the Applicant's written requests to these development standards have adequately demonstrated that the matters in cl 4.6(3)(a) have been addressed. 58Clause 4.6(4)(a)(ii) also requires satisfaction that the proposal is in the public interest because it is consistent with the objectives of the zone before consent can be granted. The objectives of the B1 Neighbourhood Centre zone are: · To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood. · To ensure that non-residential uses do not result in adverse impacts on the amenity of existing and future residential premises. · To strengthen the viability of Waverley's existing business centres as places of vitality for investment, employment and cultural activity. 59These objectives largely relate to commercial uses, which are permissible within the B1 zone. "Residential Accommodation", other than certain types, is prohibited in this zone. The residential units are only permissible on the site as part of a shop top housing development. The commercial component of the development, other than the loading dock, is consistent with the objectives of the zone. Concurrence 60Clause 4.6(4)(b) of LEP 2012 requires that development consent must not be granted unless the concurrence of the Director General has been obtained. Clause 4.6(5) provides: In deciding whether to grant concurrence, the Director-General 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 Director-General before granting concurrence. 61This is similar to the requirement in SEPP 1. The Court has the power to assume the Director General's concurrence by reason of s 39(6) of the LEC Act. However, consistent with the decision in Wehbe, the matters in cl 4.6(5) "are still relevant when the Court is considering exercising its power". Mr Staunton, for the applicant, submits that there is a public benefit in maintaining the standards. I accept this submission. LEP 2012 has recently commenced and it contains detailed Height and FSR controls for the B1 Neighbourhood zone and the R3 Medium Density Residential zone in the vicinity of the site. These controls seek a built form in the neighbourhood centre that is generally lower in height than the residential development, and reflects the existing character of both areas. Contrary to the evidence of the applicants' experts, the planning controls do not seek to emphasise the site as a "corner gateway" of the neighbourhood centre. Given that part of the site was rezoned under LEP 2012, if additional height and FSR were deemed to be appropriate, this could also have been included in the plan. Conclusion 62For the above reasons, I am not satisfied if the matters in cl 4.6(4) of LEP 2012 and consent to the application must therefore not be granted. As the application fails on these grounds, I will not discuss the merit issues in dispute between the parties. Although they primarily deal with the height, bulk and scale of the development, which have been addressed above, and on this basis the application would also not be approved on its merits.

Orders

The appeal is dismissed.
The development application for a shop top housing development at 87 to 89 Glenayr Avenue and 13 to 15 Warners Avenue, Bondi Beach, is refused.
The exhibits, except Exhibits 1 and A are returned. Annelise Tuor 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: 14 January 2014

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Judgment (10 paragraphs)

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