Jaques Avenue Bondi Pty Limited v Waverley Council

Land and Environment Court (NSW)|2002-12-17|Before: Mr J

Introduction 1 This is an appeal against the deemed, but later actual, refusal by Waverley Council (the council) of Development Application 308/02 to demolish five buildings and erect a mixed commercial/residential building at 10 - 12 Jaques Avenue and 3 - 7 Lamrock Avenue, Bondi (the subject site).

2 We record that a view of the site and surrounding area was undertaken on the morning of the second day of the hearing in the company of representatives of both parties. We also record that we visited a site at Rosemont Avenue, Woollahra at the suggestion of the applicant because of some similarities with the subject application. This was undertaken after the completion of the hearing with the agreement of the parties. For the reasons set out in the judgement, we have concluded that the appeal should be upheld and development consent granted subject to conditions. The subject site 3 The subject site is located on the corner of Jaques Avenue and Lamrock Avenue, Bondi and comprises a total of five individual properties. The land generally slopes to the north-west, with the northern (side) boundary of the site being the lowest point in Jaques Avenue. The maximum fall across the site is approximately 2.4 m.

5 Adjacent to the subject site to the north is a three-storey Federation style red brick residential flat building slightly set back from Jaques Avenue. Further north are other three-storey residential flat buildings, some with ground floor commercial activities fronting Jaques Avenue. To the south on the opposite alignment of Lamrock Avenue are a number of two and three-storey residential flat buildings with pitched roofs and balconies facing the street on elevated positions. To the east and adjoining the subject site is a three-storey residential flat building. Development on the western side of Jaques Avenue opposite the subject site contains residential properties characterised by two and three-storey blocks of units as well as detached single dwellings.

6 The subject site is located within the block that includes Campbell Parade. The buildings to the north and adjoining the rear of the site front Campbell Parade and are characterised by ground floor commercial activities with residential above. The proposal 7 It is proposed to demolish all existing structures on site, and remove all existing vegetation including a pine tree within the street front setback of 7 Lamrock Avenue.

8 The subject site is to be excavated over 1½ levels, with parking level "Basement 1" occupying the whole site and parking level "Basement 2" occupying the southern half of the site. The depth of excavation is to a maximum of 7.8 m below the footpath level of Lamrock Avenue. The parking area is accessed off Jaques Avenue and accommodates 97 car spaces. This area also contains service and plant areas, fire egress and two lift/stair cases.

9 The proposal generally comprises 2 x 5 storey buildings with a central courtyard running east/west from Jaques Avenue with 74 apartments and two retail tenancies. The retail floor space is situated on the Lamrock Avenue frontage with access from a walkway below street footpath level and behind a 3 m wide colonnade. A breakdown of the various components of the proposal is shown below:- Level Retail (sqm) 1 Bed Units 2 Bed Units 3 Bed Units Total 1 233 8 4 - 12 2 - 12 - 18 3 - 10 7 - 17 4 - 8 9 1 18 5 - 6 3 - 9 TOTAL 233 44 29 1 74

10 The application also proposes the strata subdivision of the development. Relevant planning controls

11 The subject site is zoned General Business 3(a) pursuant to Waverley Local Environmental Plan 1996 (LEP 1996). The proposed use is defined as a "mixed development" and is permissible within that zone with the consent of council. Clause 10 (2) of LEP 1996 provides that consent shall not be granted unless the council is satisfied that the development meets one or more of the objectives of the zone. These zone objectives are found in the zone table for the 3(a) zone. The satisfaction with cl 10(2) was not a matter raised by the council. Requirements for height and floor space ratio (FSR) are found at cls 13 and 15 respectively. The subject site is also subject to cl 30(b), being located within the Bondi Beach Beachfront Scenic Protection Area.

12 Also relevant is the Bondi Beach Urban Design Development Control Plan (Bondi Beach DCP). The relevant parts are cl 1.0 - General, cl 2.0 - Street Design Policies, Street Design Policy 4 - Jaques Avenue, Street Design Policy 8 - Other Residential Streets, cl 3.0 - Development Controls, Development Control Area Location 20 (2 to 12 Jaques Avenue), Development Control Area Location 24 (1 to 7 Lamrock Avenue) and cl 4.0 Design Guidelines.

13 Also relevant is Development Control Plan No 14 - Bicycle and Car Parking (DCP 14), State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65), Better Urban Living - Guidelines for Urban Housing in NSW (Better Urban Living Guidelines) and the Residential Flat Design Code - Tools for improving the design of residential flat buildings (Residential Flat Design Code). The issues 14 The council filed a Statement of Issues containing 14 issues. Of these issues, issue 1 (plans), issues 3 and 4 (height), issues 5 and 6 (floor space ratio), issue 9 (affordable rental housing) and issue 12 (car parking) were either withdrawn by the council or addressed through conditions. The remaining issues can be conveniently grouped into the following main areas: 1. The design of the proposal and the impact on the character of the area (Issues 2, 7 and 8). 2. The impact on adjoining properties by way of loss of views, overshadowing and loss of privacy (Issue 11). 3. The internal amenity of this proposed units in relation solar access, ventilation and visual and acoustic privacy (Issue 8). 4. The loss of vegetation (Issue 10).

15 Issue 14 deals with the submissions made to the council and the public interest and is addressed as part of the discussion on the above issues. A number of matters raised by the public are dealt with as part of the above issues however a number were not raised by the council in the Statement of Issues. Those matters not addressed in the above issues (including Issue 13 dealing with traffic flows and parking overspill) are separately addressed and are based on the compilation of the individual submissions contained in the evidence of Mr Andrew Smith.

16 These are:- · Parking and traffic · No communal open space · Construction noise · Proximity of garbage store · Increased crime · Impact of excavation · Excessive pedestrian traffic and · Flooding The evidence

17 Expert evidence for the council was provided by:- · Mr Andrew Smith, consultant town planner, · Professor Neville Quarry, architect · Mr Robert Meys, consultant horticulturalist and aborist 18 Further evidence was also provided by local residents:- · Mr Julian Blanchard, 1/1A Lamrock Avenue · Ms Louise Santos, 2/1A Lamrock Avenue · Mr Martin Butler, 11 Jaques Avenue · Mr John Wakefield, Deputy Convenor, Bondi Beach Precinct and, · Mr Bruce Clark, 5/9 Lamrock Avenue 19 In addition, the Court was provided with copies of the submissions received by the council when the proposal was originally advertised and also when the amended proposal was advertised.

20 Expert evidence for the applicant was provided by: · Mr Alexander Tzannes, the project architect · Mr Michael Nuestein, architect and urban planner · Professor Peter Webber, architect · Dr Richard Lamb, visual and landscape consultant · Ms Narelle Sonter, landscape consultant · Mr Steve King, consultant architect · Mr John Coady, traffic engineer · Mr George Smith, consultant town planner

21 Of the expert witnesses Mr Meys, Mr Coady and Mr George Smith were not required for cross examination. Design and character of the area

22 Professor Quarry states that the proposal does not reflect the existing context and character of its location. He sees most buildings in the immediate vicinity as narrow towards the street and clearly separated from their next door neighbours. The proposal obliterates the existing diversity by proposing continuous and consistent facades along the boundaries of the subject site. The zero setback on the eastern boundary also places a constraint on the adjoining properties. He also states that the proposal does not comply with the height and setback controls of the Bondi Beach DCP. In terms of future character, Professor Quarry states that an extension of the proposed design to the rest of Jaques Avenue would see an almost continuous 15 m high façade with an impervious base and only two gaps between the likely three buildings. He describes this as "not an attractive appearance". He suggests that the use of the planning controls does not entirely or reliably specify future character by attempting to control dimensional parameters. Professor Quarry suggests there are ways of visualising future physical character other than by interpreting planning instruments. These comments are generally supported by the local residents.

23 Professor Quarry's comments are also supported by Mr Smith who further states that the disposition of building elements generates poor design outcomes. These include minimal separation between the two building elements considering the height of 5 storeys, excessive excavation with no opportunities for deep soil plantings and zero set backs to the eastern boundary.

24 Professor Webber describes the visual impact of any development as an outcome of the permitted density in combination with its height, its physical form, the nature of its context and detailed elements such as materials, colour and texture. He sees the proposal as complying with the desired future character as specified in the planning controls in relation to height, setbacks and density. He also sees the proposal as being in character with and complementary to its neighbour to the east and compatible with other developments in its zone. In terms of design elements, Professor Webber states that the proposal is sensitively articulated so it would relate comfortably with its neighbours using devices such as setbacks, balcony recesses and projections, expression of base elements and shutters and pergolas that produce an overall entirely appropriate sense of scale. While these elements do not directly mimic components of existing buildings in the area, they capture the essential ambience of the locality.

25 Mr Tzannes' evidence outlined the design philosophy for the site. He stated the built form and architectural elements are derived from the circumstances of the site and reflect the intent and objectives of the development controls. As such, he sees the architecture of the proposal as appropriate to the site and an appropriate context for future development in the area. He reiterates the elements identified by Professor Webber, as suitable elements that provide articulation to the building. On the Bondi Beach DCP requirement for a corner treatment, Mr Tzannes sees the design as providing special features through different architectural elements, such as the zero set backs, the ground floor colonnade, open balconies and different detailing not found elsewhere on the building. In his opinion, this provides the necessary attention to the corner and satisfies the requirement in the Bondi Beach DCP. Mr Tzannes agrees with Professor Webber that the height and form of the proposal responds closely to the desired future character of the area as described in the Bondi Beach DCP.

26 Dr Lamb provided evidence on the visual implications of the proposal. While he categorises the change in the visual character of the streetscape as high, he does not see this as an impact of significance in itself, as it is anticipated by the councils planning controls. Even if considered in isolation, the proposal would relate appropriately to its context, being the replacement of a derelict setting with a quality contemporary architectural project. He describes the design as being entirely appropriate for its purpose and location. While the new buildings are of contemporary appearance, the standard of design and finish is higher that other buildings in the vicinity. Overall, he considers the future character of Bondi and the streets addressed by the development would be improved to an extent that is beneficial to both.

27 Mr Nuestein's evidence supports the evidence of Professor Webber, Mr Tzannes and Dr Lamb. He also sees the building as being appropriate in terms of height, building separation, set backs, floor space ratio, particularly in response to the requirements of the relevant planning controls and the existing natural site constraints.

28 The issue of the design of the proposal and its impact on the character of the area is a matter addressed by a number of the relevant planning controls for the site. It was also a matter that occupied a relatively large amount of the hearing time and was a significant concern to the local residents.

29 Part 2 of SEPP 65 provides a number of design quality principles. The relevant principles are: - 9 . Principle 1: Context Good design responds and contributes to its context. Context can be defined as the key natural and built features of an area. Responding to context involves identifying the desirable elements of a location's current character or, in the case of precincts undergoing a transition, the desired future character as stated in planning and design policies. New buildings will thereby contribute to the quality and identity of the area. 10. Principle 2: Scale Good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings. Establishing an appropriate scale requires a considered response to the scale of existing development. In precincts undergoing a transition, proposed bulk and height needs to achieve the scale identified for the desired future character of the area. 11. Principle 3: Built form Good design achieves an appropriate built form for a site and the building's purpose, in terms of building alignments, proportions, building type and the manipulation of building elements. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook. 12. Principle 4: Density Good design has a density appropriate for a site and its context, in terms of floor space yields (or number of units or residents). Appropriate densities are sustainable and consistent with the existing density in an area or, in precincts undergoing a transition, are consistent with the stated desired future density. Sustainable densities respond to the regional context, availability of infrastructure, public transport, community facilities and environmental quality. 17. Principle 9: Social dimensions Good design responds to the social context and needs of the local community in terms of lifestyles, affordability, and access to social facilities. New developments should optimise the provision of housing to suit the social mix and needs in the neighbourhood or, in the case of precincts undergoing transition, provide for the desired future community. 18. Principle 10: Aesthetics Quality aesthetics require the appropriate composition of building elements, textures, materials and colours and reflect the use, internal design and structure of the development. Aesthetics should respond to the environment and context, particularly to desirable elements of the existing streetscape or, in precincts undergoing transition, contribute to the desired future character of the area.

30 LEP 1996 provides general aims of the plan at cl 2. Clause 3 provides specific aims for certain elements. Relevantly, cl 3(2) aims "to encourage a range of activities within commercial zones" (cl 3(2)(a)) and "to promote a mix of uses to satisfy the demands of commercial and residential development in commercial zones" (cl 3(2)(a)). Clause 3(7) aims "to encourage a range of housing types to meet the changing needs of the community" (cl 3(7)(b)) and "to ensure that new housing is compatible with surrounding development" (cl 3(7)(d)).

31 Clause 13(1) provides that any building in the Bondi Beach Precinct must not be greater than 15 m. Clause 13(2) provides matters that must be taken into consideration when deciding whether to grant consent for the erection of a building in the Bondi Beach Precinct. The relevant parts are ss (a), (b), (c), (d), (g) and (h).

32 Clause 15 states that consent must not be granted if the FSR exceeds 3:1.

33 Clause 30(b) requires an assessment to be made of the aesthetic appearance and visual quality of the proposal when viewed from the South Pacific Ocean and from Bondi Beach.

34 The Bondi Beach DCP provides more detailed controls. Clause 2 provides specific Street Design Policies for Jaques Avenue (No. 4) and Lamrock Avenue (No. 8). For Jaques Avenue, it states: In a transitional zone, the eastern side of the street is zoned for retail commercial use whilst the western side remains residential. In contract to Curlewis Street, Jaques Avenue is primarily residential in character with limited traffic, although service access to commercial properties and car parking remain a problem. The street design policy requires the development of a balanced street profile which matches the height, and set backs of the commercial frontage, to the potential height an set backs on the residential (western) frontage. On the western side, residential character is set by a 10 m permissible height limit and set backs of 3 m at both ground and first floor. Whilst a 15 m permissible building height prevails on the eastern side, with a recommended building height over all of 12.5 m, the street design policy to achieve a balanced street profile requires ground floor development to be set back 3 m, with a further set back of 3 m o a building height of 10 m, and a third set back of 3 m before the recommended overall building height of 12.5 m is achieved. Set backs above ground level should be treated as landscaped or roof areas with outdoor usage minimised to avoid noise problems at the residential/commercial interface. Commercial uses at ground floor level should be limited to those with low service requirements to protect residential amenity. The duality of uses in an essentially residential street may be avoided by the development of an additional layer of retail space in the block between Campbell Parade and Jaques Avenue. This remains a proposal only at this stage and its feasibility is subject to further study.

35 For Lamrock Avenue, it states:- In Lamrock Avenue a set back of 6 m is required to coordinate with existing property lines. This set back zone is to be reserved for access and landscaping and shall not provide for car parking where this involves the construction of garages or car ports, whether these structures are attached or free-standing. Buildings are to be set back 3 m from the front property boundary, with a further set back of 3 m at the third storey. This set back should be treated as a landscaped roof terrace area.

36 Clause 3.2 provides specific controls for the subject site in Jaques Avenue (Development Control Area 20) and Lamrock Avenue (Development Control Area 24). The requirements have a number of specific design issues. These are:- · Enhance existing character (C) · Set backs (D) (M) (S) (K) · Maintain and develop ground floor retail space (F) · Provide roof terrace to street frontage (J) · Provide solar access to adjacent property (K) · Provide special corner treatment (L) · Limit ground floor commercial use to low service requirement users (Q) · Provide continuous pedestrian cover (G) 37 Clause 4.0 of the Bondi Beach DCP provides Design Guidelines. The clause states that the design guidelines are to "provide information for owners intending to alter or rebuild their properties". These properties are "generally those where part or all of the existing fabric is recommended for retention or incorporation into a new development". When this is not the case new development should be "of a character and detail which integrates with the existing character of the streets is considered desirable". It further states that the "elements are capable of interpretation in a wide range of materials and styles, providing variety in flexibility within the context of a framework which unites the street in urban design terms and providing a high degree of continuity between the street and the study area".

38 A number of specific elements make up the design and its relationship with the character of the surrounding area. These elements are addressed in more than one planning document, so for convenience and clarity, the elements are addressed individually. · Height - Clause 13, LEP 1996 - Development Control Areas 20 and 24, Bondi Beach DCP · FSR - Clause 15, LEP 1996 - Principle 4, SEPP 65 · Streetscape/character - Clause 3(7)(d) and cl 3(7)(b), LEP 1996 - Development Control C., Bondi Beach DCP - Principles 1, 2, 3 and 10, SEPP 65 · Setbacks - Street Design policies 4 and 8, Bondi Beach DCP - Development Controls D, M, S and K, Bondi Beach DCP · Retail activities - Clause 2(a), cl 3(2)(a), LEP 1996 - Development Control F, Q, Bondi Beach DCP · Residential mix - Clauses 3(2)d, and 3(7)(b), LEP 1996 - Principle 5, SEPP 65 · Pedestrian cover - Clause 3(2)(c), LEP 1996 - Development Control G, Bondi Beach DCP · Roof terraces - Development Control J, Bondi Beach DCP · Corner treatment - Development Control L, Bondi Beach DCP 39 The height of the proposed development was originally an issue in the proceedings but the submission of amended plans saw the proposal satisfy the 15 m height limit in LEP 1996. Consequently, this issue was deleted by the council. The height was still seen as an issue by a number of residents who relied on the Bondi Beach DCP, which shows a 12.5 m "recommended building height". Curiously, the Bondi Beach DCP also mentions a 15 m building height but refers to this height as the "permissible building height". No explanation for the two building heights is contained in the Bondi Beach DCP. When asked by the Court for his interpretation of the conflicting height controls, Mr Tzannes suggested that it could be seen as a means of addressing sloping sites. This interpretation was not challenged and no further explanation was provided to the Court.

40 In addition to the maximum height limit of 15 m in cl 13(1), further consideration is required by cl 13(2). It states that in deciding whether to grant consent, a number of additional matters must be taken into consideration. The relevant matters in cl 13(2) are:- (a) whether the proposed building has high architectural merit; (b) the height, scale, bulk and density of the proposed building; (c) the external appearance of the proposed building and materials that will be used on the exterior of it; (d) the relationship between the proposed building and the surrounding landscape and streetscape and between the proposed building and surrounding buildings; (g) whether the proposed building complements surrounding buildings; (h) the effec t that the proposed building will have on public amenity, including pedestrian amenity;

41 In considering cl 13(2), the overall question of height is not open for review. Clause 13(2) must be considered conjunctively with cl 13(1) otherwise it would have no purpose. For reasons set out later in the judgement, a consideration of those relevant matters in cl 13(2) does not lead the Court to the conclusion that the proposed development is unacceptable because of its height.

42 The FSR was also an issue prior to the submission of the amended plans, however it was consequently deleted by the council from its Statement of Issues. The FSR of 2.81: 1 now satisfies the maximum of 3:1 required by cl 15 of LEP 1996.

43 The impact of a proposal on the character and streetscape was consistent concern raised by the council. The desired future character is a term widely used in the planning controls and underpins much of the discussion on this issue. In our opinion it is correctly interpreted by the applicant's experts.

44 The desired future character must be inextricably related to the council's planning controls. We note it is specifically referred to in this context within Principle 1 of SEPP 65. In our reading of the many submissions sent to the council and the oral evidence of those residents who appeared before the Court, the general impression was that the building was too tall and bulky and was inappropriate for the subject site. While there sentiments are undoubtedly sincere, they do not accord with the form of the building envisaged by the controls relating to height, floor space and set backs as prescribed in LEP 1996 and the Bondi Beach DCP. It is not the role of the Court to determine the appropriate planning controls for the subject site but to only assess the development application in accordance with those controls adopted by the council, after the procedures set out in the Environmental Planning and Assessment Act 1979 have been followed. It was also argued that the recent rezoning of the properties on the western side of Jaques Avenue gives added weight to the claims that the proposal is inconsistent with the desired future character. The rezoning effectively reduced the maximum height of buildings on the opposite side of Jaques Avenue. In our opinion, this argument must be rejected. If it were thought that the reduction in height created a conflict with the subject site (and presumably the other similarly zoned properties in Jacques Avenue) then the appropriate means of dealing with this would be through amendments to the controls for the subject site. It is our opinion that the form of the building, through its significant compliance with the council's planning controls must represent the desired future character of the area.

45 The length of the elevation along Jaques Avenue was seen by Professor Quarry as a significant problem. We disagree. The Jaques Avenue frontage comprises two separate buildings although joined by an architectural "bridge" on the top level. The gap between the buildings is some 4m with security gates at ground level. While we accept that the separation between the buildings is not overly wide, of far greater importance is the techniques used to minimise the perceived bulk along this frontage. These include varied setbacks, articulation, different materials for the building and the varied fenestration provided by the shutters, pergolas and even the sandstone wall. It is not necessary, in our view, to overly emphasise the separation between the buildings when the architectural treatment to this elevation provides an interesting and varied streetscape.

46 On the matter of the Design Guidelines, the test in the Bondi Beach DCP is one of integration. In our reading of the Bondi Beach DCP, flexibility is also promoted and not necessarily by the copying or mimicking of features found elsewhere in the Bondi area. Mr Tzannes' evidence indicated that the design philosophy adopts architectural elements from the site and general area without actually replicating any specific features. In his opinion, the proposal combines both horizontal and vertical elements in a "rich and varied composition". The rendered masonry walls provide interest through a multiplicity of elements and avoid blank unornamented surfaces and continue the detailed varied façade of the area. The roof form is also appropriate, according to Mr Tzannes, as it is articulated and has varying relationships to walls, window heads and loggias.

47 On this issue, we agree with Mr Tzannes and accept that the proposal satisfactorily integrates with the existing character of the nearby buildings. The features described by Mr Tzannes contribute to the blending of the proposal into its location without the need to rigidly adopt the examples shown in cl 4.0 of the Bondi Beach DCP. While Mr Tzannes' comments come from an architectural perspective and the subtleties may not always be recognised by less qualified people, it could not be said that the proposal does not integrate with the existing building features in the area

48 For these reasons, we see no conflict with Principles 1, 2, 3, 4 and 10 of SEPP 65. Similarly, we find no inconsistency with the relevant general aims in cl 2, the relevant aims in cl 3 of LEP 1996 dealing with the design and its potential impact on the character of the area. Further, and with the benefit of the view of the site and surrounding area we see no conflict with the proposal and those matters required to be considered by cl 30(b) of LEP 1996.

49 The setbacks for the subject site are found in Development Control Areas 20 and 24 of the Bondi Beach DCP. For Jaques Avenue, approximately 60% of the frontage from Lamrock Avenue can be built to the property boundary. A setback over 3 m is required for a building height over 9 m. The remaining frontage is to be set back 3 m above ground floor to a maximum height of 9 m, then a further 3 m to the recommended maximum height of 12.5 m. For the Lamrock Avenue frontage, approximately 60% can be built to the property boundary. The remaining frontage is to be set back 1.5 m.

50 Mr Smith accepts that the building is set back the required 3m to Jaques Avenue however it is behind a stone wall that is located on the boundary. Between ground level and a height of 13 - 14 m, the set back varies between zero at the southern end to 3 - 6 m at the northern end. Mr Smith sees this as increasing the mass of the building close to the street at the upper levels thereby creating a visually intrusive and unbalanced street profile.

51 Mr Nuestein states that the stone wall is a necessary feature of the development as it affords protection from local flooding. He notes that the height of the stone wall ranges from 1.2 - 2.4 m. but its form reflects a similar feature on the existing building located on the western corner of Jaques Avenue and Lamrock Avenue. For Building A (at the north end of the subject site) the set backs range from 3 m at level 1, 6 m at level 3 and an average of 17 m at level 5. He sees the set backs as creating an aesthetically pleasing design that enhances the streetscape of Jaques Avenue and Lamrock Avenue and this part of Bondi in general.

52 On the matter of setbacks we find the proposal acceptable as they are generally in accordance with the requirements of the Bondi Beach DCP. While the stone wall could be seen as a technical non-compliance, the treatment of this wall minimises its impact on the streetscape by the use of natural materials and modulation. In our view its impact on the streetscape is not significant We are also mindful of similar features in the locality.

53 The provision of retail activities and its relationship with residential uses within the proposal was seen by Mr Smith as being inappropriate; the commercial component being only some 3% of the total floor area. He also describes the location of the commercial component as being "subterranean" and having poor exposure to Lamrock Avenue. He also sees the Jaques Avenue frontage as providing no street level retail activities which he considers are appropriate for the commercial zone.

54 Mr Nuestein states that the commercial component has been located only on the Lamrock Avenue frontage to minimise any potential adverse impact on residential amenity. He sees the limited introduction of ground floor commercial activities as being sensitive in terms of both use and built form. In his opinion the retail activities will enhance the existing mix of uses in Bondi.

55 The Bondi Beach DCP provides requirements for retail and commercial activities. These state:- Maintain and Develop Ground Floor Retail Space To maximise retail effectiveness and consolidate existing retail areas, new development is to provide retail frontage at the front boundary alignment, without intrusion by institutional and related issues, or by trafficked footpath crossings. Limit Ground Floor Commercial Uses In order to preserve residential amenity in mixed use street, ground floor commercial/retail activities should be limited to those with only low service and parking requirements.

56 On this issue we agree with Mr Nuestein. While the proposal provides only a small portion of its floor area as commercial floor space, the Bondi Beach DCP does not provide any direction on an appropriate ratio of retail and residential uses but does direct that the ground floor commercial uses should be limited "to low service requirement users". With the subject site adjoining residentially zoned land on the opposite sides of both Jaques Avenue and Lamrock Avenue, the limited commercial space in Lamrock Avenue and the absence of any commercial space in Jaques Avenue would seem appropriate. Similarly, the entrances below street level are also acceptable and are in line with the required low service commercial uses required by the Bondi Beach DCP. Consequently, we see no issue with the requirements of the Bondi Beach DCP.

57 The residential mix was also raised as a concern by Mr Smith. He states that the proposed social mix and access to units for all ages is unsatisfactory. As the proposal has only 1 x 3 bedroom unit out of a total of 74 units (1.3%) and an excessive number of 1 bedroom units (44 units or 60%) the social mix is inappropriate and out of step with "current policies for social mix and integration". In considering Mr Smith's evidence, the Court was not provided with any evidence to support his assertions. The Bondi Beach DCP and LEP 1996 provide no requirement for a specific mix between 1, 2 or 3 bedroom units and no further evidence was provided by Mr Smith on his "current policies for social mix and integration". The only substantive evidence was provided by Mr Nuestein who includes an analysis of the 2001 Census data and concludes that the housing provision will specifically cater for the needs of the predominant population profile in the Bondi area while also providing for small family units in the two bedroom configuration. His evidence was not challenged so we find the proposal acceptable in terms of Principle 9 of SEPP 65.

58 The Bondi Beach DCP requires the provision of pedestrian cover. Specifically, it states: Provide Continuous Pedestrian Cover Shelter for pedestrians is to be provided by continuous awnings, extended balconies or other equivalents. 59 The proposal provides for covered access to the retail floor area in Lamrock Avenue through a colonnade and recessed access arrangements. While not being an awning, we accept that it is an acceptable treatment. We note the requirement provides for "other equivalents" and not necessarily a continuous awning so we can conclude that the requirement in the Bondi Beach DCP is satisfactorily addressed.

60 Requirements are also found in the Bondi Beach DCP for roof terraces. The requirement states:- Provide Roof Terrace to Street Frontage In common with a wide range of Bondi residential buildings, set back the top floor to provide a roof terrace or verandah.

61 The proposal provides for some roof top terraces however with the resident concern over these areas we accept the proposal strikes a reasonable compromise in terms of the requirement in the Bondi Beach DCP. Impact on adjoining properties

62 The impact on adjoining properties involves view loss, a loss of privacy and the effects of overshadowing.

63 In terms of view loss, the most significant impact occurs from the roof top terrace of 1A Lamrock Avenue. This area forms part of the unit entitlement for unit 5. The terrace area was visited on the view of the site and an estimate made of the location of the proposed building through the survey details. The proposed building abuts the western edge of the roof terrace for its full length. The top of the parapet of 1A Lamrock Avenue is shown as RL 28.94 m and the parapet of the proposed building is RL 30.15 m. The height above the existing parapet is 1.21 m so the district views to the west will be lost. This loss of views was seen as a major concern by the owner.

64 In our opinion, the loss of views form the roof terrace is not sufficient to warrant the refusal of the application. We have reached this conclusion after a careful assessment of the levels and the council's height requirements. The height of the proposed building at this point is 12.81 m (i.e, the distance between the natural ground level of RL 17.34 m and the height of the proposed building of RL 30.15 m). This is 2.19 m below the 15 m permissible height and 0.31m above the recommended building height of 12.5 m. In our calculations, and even if the proposed building satisfied that 12.5 m recommended building height, there would still be the same loss of views. The understanding of this issue is not helped by the clearly inaccurate depiction of the "permissible building height" and "recommended building height" on the profile of the existing buildings at 1 - 7 Lamrock Avenue in the Bondi Beach DCP.

65 The issue of overshadowing focused on the courtyards of 1A Lamrock Avenue. The courtyards and landings that back onto the subject site were visited and the shadow diagrams examined. In addition, further shadow diagrams were provided to the Court following the evidence of some of the residents who reside in these premises. The additional shadow diagrams indicated that the proposal will have only a minimal effect on the existing levels of sunlight that are available to these units in mid winter. While the location of the sunlight might change, the areas do not change to any noticeable extent. Additional shadows will fall on the northern elevation of 1A Lamrock Avenue, however the additional area is not of sufficient size to warrant the refusal or modification of the application. The shadow diagrams also show some additional shadowing being cast on Jaques Avenue and Lamrock Avenue although this nearly all falls within the road reserve and not on private property.

66 The loss of privacy was seen by Mr Clark as an issue. His premises are located on the opposite side of Jaques Avenue and his concerns related to the opportunity for overlooking from the balconies and terraces of the proposal into his property. His property was also visited on the site view. We accept that the erection of the proposed building will reduce the level of privacy currently enjoyed by Mr Clark however these levels of privacy are principally the result of the undeveloped nature of the subject site. The councils planning controls clearly envisage a higher level of development on the subject site and the natural consequence is a reduction in the current level of privacy enjoyed by Mr Clark. Such a position would apply even if the proposal complied with the recommended height of 12.5 m. In our view, the separation distance of some 20m between the properties is an acceptable buffer and should afford adequate privacy, although less than currently exists.

67 Privacy was also originally raised by the residents of 1A Lamrock Avenue however amendments to the plans and additional conditions have satisfactorily addressed this issue.

68 A further concern raised by the residents of 1A Lamrock Avenue is the overbearing appearance of the wall on their common boundary. This appearance was seen as being particularly unacceptable from the rear courtyards because of the height and its unarticulated presentation. The impact of the additional building form was estimated when the Court visited the courtyards of 1A Lamrock Avenue.

69 The Bondi Beach DCP is silent on the provision of a set back in this area although set backs are addressed as part of the requirements in cl 30, at K, where it states:- Provide Solar Access to Adjacent Property Development is to be setback from rear property boundary to provide access to sunlight, up to the distance equivalent to the height of the proposed building.

70 The requirement provides that the set back should be based on the access to sunlight. A setback of up to the equivalent height of the proposed building can be required. Having found that solar access to 1A Lamrock Avenue is acceptable, the requirements of the Bondi Beach DCP are satisfied. We do however agree that the proposal increases the feeling of enclosure from the courtyards of 1A Lamrock Avenue. Little direction is provided by the Bondi Beach DCP on this matter however we agree that the visual impact could be reduced through some additional detailing on this section of the wall. This can be adequately provided through a condition. Loss of vegetation

71 The central concern is the loss of the tree located near the corner of Lamrock Avenue and Jaques Avenue. While there is some dispute between Mr Meys and Ms Sonter over the particular species, it is not critical to the Courts determination of this issue. The pine is some 12 - 14 m in height and some 4 m in spread. There was agreement between Mr Meys and Ms Sonter that its position near underground services is not the most appropriate location, however Mr Meys seeks its retention as he considers this to be a secondary concern based on the contribution the tree makes to the streetscape of the area.

72 Ms Sonter describes the tree as being inappropriately located for a species of such scale and maturity, particularly considering the proximity to services and also the boundary wall at 7 Lamrock Avenue. She proposes the planting of a semi-mature Cook Island Pine of about 6 - 8 m in height in the broad footpath area at the corner of Jaques and Lamrock Avenues. She envisages a species of this size would be expected to reach a similar height to the existing tree after some 6 - 8 years. This suggestion is not supported by Mr Meys. He states that there is insufficient area for the tree in the area proposed, the soil is unsuitable and it is in the public domain and likely to be subject to vandalism. He also questions the potential for growth as described by Ms Sonter.

73 On this issue, we accept that the loss of the tree is a consequence of the redevelopment of the subject site. On balance, the aesthetic value it brings to the area is not of sufficient weight to suggest that the proposal should be amended to include the tree. Based on Mr Meys' evidence, the new tree proposed by the applicant is not considered appropriate. Internal impacts

74 These impacts include ventilation, solar access and visual and acoustic privacy.

75 In terms of ventilation, we note neither that LEP 1996 nor the Bondi Beach DCP provides any requirements. Principle 3 of SEPP 65 however states that "appropriate built form provides internal amenity and outlook". Principle 7 states "optimising amenity requires ………… natural ventilation". Ventilation is also addressed in the Better Urban Living Guidelines. It has as its objective "to ensure urban housing is naturally ventilated to a high degree". Suggestions are provided on how this can be achieved. Further guidelines are provided in the Residential Flat Design Code and Part 03, at p81, provides the following "Rules of Thumb": · Building depths, which support natural ventilation typically range form 10 to 18 metres. · Sixty percent (60%) of residential units should be naturally cross ventilated. · Twenty five percent (25%) of kitchens within a development should have access to natural ventilation. · Developments, which seek to vary form the minimum standards, must demonstrate how natural ventilation can be satisfactorily achieved, particularly in relation to habitable rooms .

76 Mr Smith's concerns appear to be based on the non-compliance with the 60% natural cross ventilation standard in the Residential Flat Design Code. In this regard he calculates that 59 of the 74 units do not have cross ventilation. In our understanding of his evidence no issue was taken with the building depth requirement or the access of kitchens to natural ventilation. We also note that Professor Quarry also raises concern over lack of cross ventilation and specifically to the fact that the design of the units provide for a loss of solar access if some internal doors are closed.

77 Mr King, who has particular expertise in this area, distinguishes between the concepts of cross ventilation and ventilation. While accepting Mr Smith's calculations and conceding that cross ventilation is a desirable attribute, he does not see it in itself as being critical to the achievement of appropriate comfort or energy performance, especially in apartments. His evidence addresses the concept of air change and air velocity and the particular attributes of the proposed development. He concludes by stating the layout and detailed design is a conscientious response to the problem of providing well controlled natural ventilation and is appropriate to this climate zone.

78 On this issue, we prefer the evidence of Mr King. His evidence provides a greater depth of understanding and analysis of this issue. The Residential Flat Design Code suggests that 60% of residential units should be cross ventilated although this figure may be varied if it can be demonstrated how natural ventilation can be achieved. In our view, Mr King's detailed evidence has satisfactorily shown that adequate ventilation (and not necessarily cross ventilation) can be achieved. While a different design may achieve a higher standard of ventilation, we are satisfied that the ventilation for the proposed design is adequate.

79 In terms of solar access, no requirements are provided by LEP 1996 or the Bondi Beach DCP. Principle 7 of SEPP 65 addresses this issue and states, "optimising amenity" requires " access to sunlight". The Better Urban Living Guidelines addresses Daylight Access with the objective of ensuring "that daylight access is provided to all habitable rooms and encouraged in all other areas of urban housing development". The Residential Flat Design Code provides a similar objective, in addition to providing "adequate ambient lighting and minimise the use of artificial lighting in daylight hours" and to provide "the ability to adjust the quantity of daylight". The following "Rules of Thumb" are also provided:- · Living rooms and private open spaces for at least 70 percent (70%) of apartments in a development should receive a minimum of three hours direct sunlight between 9 am and 3 pm in mid winter. In dense urban areas a minimum of two hours may be acceptable. · Limit the number of single-aspect apartments with a southerly aspect (SW-SE) to a maximum of 10 percent of the total units proposed. Developments which seek to vary from the minimum standards must demonstrate how site constraints and orientation prohibit the achievement of these standards and how energy efficiency is addressed (see Orientation and Energy Efficiency). · See Apartment Layout for additional rules of thumb.

80 Mr Smith calculates, using the applicants shadow diagrams, that 33 of the 74 dwellings (45%) will receive no solar access between 9 am and 3 pm, in mid winter. In particular, the south facing external dwellings will be reliant upon artificial lighting for a great portion of the year. He describes the solar access as unsatisfactory.

81 Mr King states that the proportion of units achieving the nominated standard is 48 units (based on the 2 hour standard) giving a percentage of 65%. Mr King disputes that 33 of the units receive no sun in the nominated period. His assessment identifies 26 units that do not satisfy the nominated standard of which 22 units are south facing. He notes that the Residential Flat Design Code explicitly acknowledges that site orientation may reduce such compliance and that energy efficiency is also a factor in the determination of adequate solar access.

82 On this issue, we prefer the evidence of Mr King. The basis for the difference between the figures of Mr Smith and Mr King was not overly clear however a review of the applicant's shadow diagrams supports the conclusions of Mr King. The difference between 65% and the 70% requirement in the Residential Flat Design Code is not great and is not unexpected given the orientation of the subject site and the size of the proposal. We are also mindful of Mr King's evidence on the benefits of reflected lights in the courtyard area and the likely sunny aspect even without direct sunlight. We are also aware of the distinction between daylight and sunlight and note that the objectives of both the Residential Flat Design Code and the Better Urban Living Guidelines refer to daylight, as distinct from sunlight. We also acknowledge Mr King's unchallenged evidence on the acceptable general standard of thermal performance of the proposal. All of these matters considered, we find the proposal acceptable in terms of solar access.

83 While Mr Smith raised concern over the size and solar access of some of the balconies we note that there are no specific requirements for the size of balconies in any of the applicable planning controls. As we have found in overall terms that solar access is acceptable, similarly we accept the adequacy of the balconies.

84 Visual and acoustic privacy is also not raised in LEP 1996 or the Bondi Beach DCP. It is raised in Principle 7 of SEPP 65, in terms of optimising amenity. The Residential Flat Design Code, at p 28, states, "for internal courtyards and between adjoining sites of buildings up to 4 storeys/12m a distance of 12m is suggested between habitable rooms/balconies, 9m between habitable rooms/balconies and non-habitable rooms and 6m between non-habitable rooms".

85 Mr Smith describes the design and proximity of those units facing each other across the internal courtyard as having poor amenity in terms of acoustic and visual privacy. Professor Quarry describes the internal courtyard as a "considerable enclosed spaces, within which sound vibrations may be readily propagated and reinforced and into which 30 residential units look". He also states that the level 1 courtyards will face each other from a distance of only 6 m.

86 Professor Webber states that all units would satisfy AMCORD separation guidelines of a minimum of 12m between living areas. He also states that there is no reason why satisfactory acoustic standards could not be achieved. He sees the provision and configuration of balconies, decks and pergolas as a significant contributor to amenity.

87 Mr King states that the visual and acoustic privacy are enhanced by the careful use of screens to the lower courtyards and reinforced with substantial planting outside the bedroom windows of the lowest levels. Upper storeys are provided with a 12 m separation and also sliding banks of operable louvres to both windows and terraces on both sides of the courtyards.

88 On the issue of acoustic and visual privacy we prefer the evidence of the applicant's experts. The proposal provides the 12 m separation required by the Residential Fat Design Code except on the lowest level where the balconies are extended to within 6m of each other. We note there is still a 12 m separation between habitable rooms on this level. In our view, this does not warrant the amendment of the plans as overlooking is largely addressed through the provision of landscaping in the courtyard area on this level. While acoustic privacy may be less than on the upper levels, it is not of sufficient severity to warrant the refusal or amendment of the application.

89 In general terms, Professor Webber suggests that it is appropriate to take a holistic approach to the assessment of amenity. As an example, he suggests a dwelling unit that receives little sunlight but has reasonable amenity standards for outlook, privacy, noise, internal layout, accessibility, and transport availability may be entirely acceptable. He further states that some recognition needs to be made that all units on the site are unable and cannot be expected to achieve the same level of overall amenity as development on more open sites.

90 Professor Quarry disagrees. He suggests that Professor Webber's rationale for lowering amenity standards is not applicable to this site. To take such a holistic approach should not require particular amenity deficiencies to be ignored. He does not see the site as being constrained as it is the amalgamation of six residential sites and capable of supporting a considerable residential population.

91 In our opinion, Professor Webber adopts the correct approach. As in most planning exercises it is a question of balancing the always competing components of a proposal. It is neither practical nor appropriate to reject a proposal simply because it fails to satisfy every applicable standard. In this case we have formed the view that the departures from the standards are not that significant to warrant the refusal of the application. It is not uncommon for higher density developments to present some design difficulties in maximising the various elements of internal amenity. The balance achieved by the applicant, in this case, strikes an acceptable compromise between the competing elements associated with internal amenity and the overall design considerations dictated by the councils planning controls. We have come to this conclusion after viewing the internal courtyard of the site at Rosemont Avenue, Woollahra, although it was not a significant factor in our deliberations. Resident concerns

92 The following issues were raised by the public but not addressed elsewhere in the judgement.

93 Traffic and parking was originally an issue in the proceedings but was withdrawn by the council. The council's evidence, beyond that given to the Court by the residents, was by Mr Smith. In his written statement he identifies a shortfall of 19 spaces from the requirements of DCP 14. While he states that the issue of adequate carparking is relevant, no further evidence was provided. Additionally, no specialist expert traffic evidence was provided by the council. The applicant, on the other hand provided expert evidence from Mr Coady, a traffic engineer. His assessment of the parking was that the proposal would lead to an improvement in on street parking conditions in the vicinity of the site. Mr Coady was not required for cross examination and his conclusions remained unchallenged. Notwithstanding the concerns of the residents, greater weight must be given to the expert evidence and conclusions of Mr Coady. We also note that the council deleted issue 12, however, issue 13 dealing with traffic flows and parking overspill remained active. In our view it is so closely related to issue 12 that the Court must also rely on the expert evidence of Mr Coady.

94 Communal open space was seen by some residents as being necessary for the proposal however it is not required by any planning controls.

95 Construction noise was seen as an issue although we note that the building and demolition work is restricted to 7 am to 5 pm Mondays to Saturday's (condition 4). This is presumably in accordance with the council's standard practice. We note that the applicant raised no objection to this condition.

96 The location of the garbage enclosure near 1A Lamrock Avenue was seen as a potential odour problem. We note that this area is relatively small area and screened from the adjoining property. With normal maintenance this area should not pose any problem.

97 No evidence was provided to the Court to suggest that there would be an increased incidence of crime as a result of the proposed development and as such any concerns cannot be supported.

98 Potential problems associated with the excavation of the basement carpark were raised however we accept that this is adequately addressed in the council's conditions.

99 Increased pedestrian traffic was also nominated as an issue. In the context of the zoning and the density permissible on the site, any increased pedestrian traffic would likely be in line with that envisaged by the planning controls.

100 Flooding was also raised and is addressed through the design of the proposed development. Conditions

101 The applicant raised no issue with the draft conditions that were sought to be imposed by the council. We have added the additional condition as discussed in par 70. Orders

102 For the foregoing reasons, the Orders of the Court are: 1. The appeal is upheld. 2. Development Application 308/02 to demolish all existing buildings and structures and erect a mixed residential/commercial development at 10-12 Jaques Avenue and 3-7 Lamrock Avenue, Bondi is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of Exhibits 21, A and B.

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.

CITATION : Jaques Avenue Bondi Pty Limited v Waverley Council [No 1] [2003] NSWLEC 421 APPLICANT Jaques Avenue Bondi Pty Limited PARTIES : RESPONDENT Waverley Council . FILE NUMBER(S) : (1)0271 of 2002 CORAM: Brown C at 1 - Moore C at 1 Development Application :- Height KEY ISSUES: Amenity Impact on neighbours . Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996 LEGISLATION CITED: Bondi Beach Urban Design Development Control Plan State Environmental Planning Policy No 65 . CASES CITED: DATES OF HEARING: 4, 5, 6 and 17 December 2002 DATE OF JUDGMENT: 02/14/2003

At a glance

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Judgment (95 paragraphs)

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Cases Cited (1)

Cited By (3)