Junction Freehold Pty Ltd v Waverley Council

Land and Environment Court (NSW)|2022-08-19

Judgment

COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. DA-437/2021 (DA) by Waverley Council (Council).
The DA, as amended, seeks consent for the demolition of the existing structures and construction of a new retail and commercial building over two basement levels with site amalgamation at 86-88 Ebley Street, 90-94 Ebley Street and 13-17 Gray Street Bondi Junction, legally described as Lot 10 DP 792327, Lot 1 DP730423 and SP373389 (site).
In regard to the amendments, it is noted that: 1. Waverley Council, as the relevant consent authority, has agreed to the amendment of the application (pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000) to incorporate the plans at Condition 1(a) of Annexure A. 2. The amendments were lodged on the NSW planning portal on 10 August 2022. 3. The applicant has subsequently filed the amendments with the Court on 11 August 2022.

Conciliation and agreement between the parties

The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 19 August 2022, and at which I presided. Prior to the conciliation, the parties had filed an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

Jurisdiction

This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed statement of jurisdictional prerequisites filed on 17 August 2022, supplemented by a joint statement from planning experts appointed by the parties and provided to the Court on 24 August 2022 (planning experts' joint statement). Regarding jurisdiction, and noting this advice, I find as follows. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards)
In regard to Ch 4 (concerned with remediation of land) and cl 4.6(1), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. I am advised by the parties that there is no known prior use to the property that would suggest potential contamination. I have considered whether the subject land is contaminated, and like the parties, I accept that no further action is required under SEPP Resilience and Hazards. Waverley Local Environmental Plan 2012 (WLEP)
The proposal is for retail and commercial development, permissible as commercial premises in the subject B4 Mixed Use zone. I have had regard to the zone objectives as required under cl 2.3(2). Demolition is permissible with consent under cl 2.7.
I accept the advice of the parties that the proposal would comply with cl 4.3 relating to maximum building height.
The site is subject to a floor space ratio (FSR) control of 4:1 under cl 4.4. The proposed FSR of the development as amended is 4.82:1m being a contravention of 777.4m or 20.5%. This contravention is considered below.
Clause 6.2 is concerned with earthworks. The DA proposes earthworks to accommodate two levels of basement parking to the boundary. The jurisdictional requirement is to consider the matters at cl 6.2(3), I have done so. I note the parties advise that they are satisfied that the Geotechnical Report prepared by Crozier Geotechnical Consultants dated September 2021 (Tab 10 of the Class 1 Application filed on 4 March 2022) demonstrates that the proposed works are not expected to have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.
Clause 6.5 is concerned with active street frontages in the Bondi Junction Centre. I accept the advice of the parties that the DA, as amended, provides for an active street front to the primary frontages on Ebley Street and Gray Street, with services/meters/gas regulators located on the secondary façade to Ann Street, which does not require an active street frontage under WLEP's Active Street Frontages map.
Clause 6.7 is concerned with solar access to nominated public spaces in Bondi Junction. I accept the agreed advice of the parties that the DA, as amended, does not result in any additional shadow impact at 12 noon on 21 June on the nominated public spaces and that the amended proposal complies with this provision.
Clause 6.9 is concerned with design excellence. The site falls within the relevant "key sites" mapped area and exceeds 15m in height. The proposal is therefore subject to the design excellence provisions of cl 6.9. The planning experts' joint statement provides commentary in regard to both the process followed in regard to the proposal achieving a status where a positive finding of satisfaction that it exhibits design excellence can be made under cl 6.9 of the WLEP, and the relevant qualities now exhibited by the proposal. To this end, the planning experts' joint statement includes a working through of each of the relevant considerations under subcl 6.9(4). Having regard to the application now before the Court and this advice within the planning experts' joint statement, I consider that the proposal exhibits design excellence under the terms of cl 6.9.
Clause 6.12 is concerned with maintaining the amount of non-residential floor space on certain land in Bondi Junction in Zone B4 Mixed Use and applies to the site. The DA, as amended, offers 4564m2 of non-residential gross floor area. While there is no precise survey of the non-residential gross floor area of the two storey commercial buildings on the site on 1 January 2021, in the planning experts' joint statement a very conservative estimate was made. This advice would have the proposal more than doubling the amount of non-residential floor space on the site, when compared with that at 1 January 2021. In regard to the requirements of cl 6.12(3), I am satisfied that the non-residential gross floor area of the building will be greater than the total non-residential gross floor area of all buildings on the site on 1 January 2021.

Contravention of the FSR development standard

Clause 4.4 provides for a maximum FSR of 4:1. The proposal has a FSR of 4.82:1. Clause 4.6(2) provides power for the granting of consent notwithstanding this contravention. This power is subject to certain preconditions which I will work through now. Mindful of cl 4.6(2), the applicant provided a written request seeking to justify the contravention. The written request was prepared by LK Planning and dated 1 June 2022.
Under cl 4.6(4)(a) a consent authority must form two positive opinions of satisfaction if the facilitative powers of cl 4.6(2) are to be enlivened. The first is that the applicants' written request has adequately addressed the matters required to be addressed by cl 4.6(3). These matters are: (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.

Whether compliance unreasonable or unnecessary in the circumstances of the case

The written request notes that compliance with a development standard may be seen as unreasonable or unnecessary through demonstration of one or more of the ways offered in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827. The written request uses the first Wehbe way, demonstrating that the proposal would achieve the objectives of the standard, notwithstanding the contravention. The objectives of clause 4.4 are as follows: (a) to ensure sufficient floor space can be accommodated within the Bondi Junction Centre to meet foreseeable future needs, (b) to provide an appropriate correlation between maximum building heights and density controls, (c) to ensure that buildings are compatible with the bulk and scale of the desired future character of the locality, (d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and the locality.
Objectives (a) and (b) are explanatory of the purpose of the FSR development standard. By fixing different maximum FSR for buildings on land in different areas cl 4.4 does achieve objectives (a) and (b) (reference: Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 at [49]). To the extent that it is relevant, I agree with the written request's commentary that the proposal supports the foreseeable future need of commercial activity, as compared to other non-commercial land uses, in the Bondi Junction Centre, given the extent of the proposed commercial floor space proposed. The written request also notes the proposal's conformance with building height and setback controls, indicating alignment with objective (b).
The written request argues that the proposed building is compatible with the bulk and scale of the desired future character of the locality because of its active frontages, built form and setbacks, architectural resolution and exclusive commercial use. I agree with these points raised in the written request and objective (c) of the FSR standard is achieved notwithstanding the contravention.
The written request also argues that the environmental amenity of neighbouring properties and the locality is preserved because the proposal would have no adverse effect on these matters. This is demonstrated by reference to overshadowing diagrams, privacy arrangements, consideration of view loss and the visual impact of the building itself. I accept these points as raised in the written request and objective (d) of the FSR standard is achieved notwithstanding the contravention.

Whether sufficient environmental planning grounds

The written request raises a number of planning grounds seen to justify the contravention. Sufficient here is that the proposal provides for an increase of commercial floor space in Bondi Junction in an exclusively commercial development. I accept that this meets the need for increased employment opportunities identified in various Waverley Council planning and economic studies as being undersupplied in Bondi Junction due to the zone also allowing for shop top housing developments that provide only a nominal 'required' amount of retail activity at the ground floor level and significant uplift in residential accommodation above.
I am satisfied that the applicants' written request has adequately addressed the matters required to be addressed by cl 4.6(3): (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.

Whether in the public interest

The second positive opinion of satisfaction relating to the enlivening of the facilitative powers of cl 4.6(2) are that the proposed development will be in the public interest because the development is consistent with the objectives of the contravened development standard and the relevant zone. This finding of satisfaction is a direct one for the consent authority, or in this case the Court.
I adopt the reasoning contained in the written request to find that the development is consistent with the objectives of the contravened development standard (ie cl 4.4).
The zone objectives are as follows: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To encourage commercial uses within existing heritage buildings and within other existing buildings surrounding the land zoned B3 Commercial Core.
The proposed development with retail on the ground floor and seven levels of commercial offices above provides for a mixture of compatible uses in this setting, consistent with the first zone objective. The proposal's siting of commercial offices at some scale in this accessible setting is entirely consistent with the second zone objective. The proposed commercial uses in this setting in juxtaposition with the Commercial Core is clearly consistent with the third zone objective.
With the above findings, 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.

Conclusion in regard to development standard contravention

On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) of the LEC Act, but should still consider the matters in cl 4.6(5). I have considered these matters and find nothing of significance arises.
In accordance with the above findings, the conditions which are required to be satisfied before the permissive power in cl 4.6(2) is enlivened have been met. Consequently, there is power for the Court to grant consent to the proposal notwithstanding the contravention of the FSR standard at cl 4.4.

Other provisions of s 4.15(1) of the EPA Act

The parties have provided me with advice in regard to the provisions of Waverley Development Control Plan 2012. I have considered this advice and the requirements of s 4.15(1)(a)(iii) of the EPA Act, have been met.
The parties have advised me on the submissions made after notification of the proposal. The planning experts' joint statement provided a summary of the concerns raised. An explanation was provided on how matters raised were addressed in a manner seen by the planning experts to be reasonable in the circumstances. I have taken into consideration these objecting submissions in accordance with the requirement of s 4.15(1)(d)(iii) of the EPA Act.
I have also given attention to the likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss 4.15(1)(b), (c) and (e) of the EPA Act.

Conclusion

With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect.

Orders

The Court orders that: 1. The applicant is to pay the respondent's costs thrown away, by reason of the amendment of Development Application No. DA-437/2021, pursuant to s8.15(3) of Environmental Planning and Assessment Act 1979 in the sum of $10,000 within 28 days of the date of these orders. 2. The applicant's written request under clause 4.6 of the Waverley Local Environmental Plan 2012 (the LEP) seeking a variation to the development standard for floor space ratio set out in clause 4.4 of the LEP is upheld; 3. The appeal is upheld. 4. Development Application No. DA-437/2021 for the demolition of the existing structures and construction of a new retail and commercial building over two levels of basement parking with site amalgamation of three sites at 86-88 Ebley Street, 90-94 Ebley Street and 13-17 Gray Street is approved subject to the conditions in Annexure A.

Annexure A 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: 05 September 2022

(2007) 156 LGERA 446

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Judgment (12 paragraphs)

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Cases Cited (3)