Kimberley Co Pty Ltd v Waverley Council

Land and Environment Court (NSW)|2023-07-12

Judgment

COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal of DA 291/2022 by Waverley Council. The development application seeks consent to demolish the existing structures and undertake excavation and construction of a four-storey residential flat development of four apartments over basement parking. Further, the development application seeks consent for a pool, landscaping and strata subdivision. The development is proposed at 27 and 29 Kimberley Street, Vaucluse.
Since the filing of the appeal, the development application was amended with leave of the Court on 5 April 2023. The development application was further amended following the joint conferencing of the experts in the proceedings and the Applicant seeks leave to further amend their development application as part of the orders in the proceedings (the final amended plans).
As part of the development application, the Applicant has made an offer of a Voluntary Planning Agreement (VPA) which has been accepted by the Respondent. The terms of the VPA include the dedication of the entirety of the part of the subject site which is zoned RE1 Public Recreation under Waverley Local Environmental Plan 2012 (LEP 2012) to the Council at no cost. The implementation of this offer forms part of the annexed conditions.
The Respondent is satisfied that the final amended plans resolve the issues raised by them in the Amended Statement of Facts and Contentions dated 22 May 2023 and has signed consent orders for the grant of development consent. (Exhibit 1)
The parties seek for the appeal to be resolved through agreed consent orders. The orders sought are that the appeal is upheld, and consent is granted to the development, subject to a set of agreed conditions.

Site and Locality

The site comprises two lots being, Lot 1 in DP 560890 and Lot 2 in DP 1056298. The site contains a two-storey dwelling house at 27 Kimberley Street and a part one, part three storey dwelling house at 29 Kimberley Street with two vehicular access points from Kimberley Street. There is a large Norfolk Island Pine tree located within the front setback of 29 Kimberley Street and a mature Silver Banksia situated on the nature strip of 29 Kimberley Street.
The site is located partly in the R3 Medium Density Residential zone and partly within the RE1 Public Recreation zone pursuant to LEP 2012.
The site is partly located in a Landscape Conservation Area pursuant to Pt 2 of Sch 5 in LEP 2012. The site is further located in a Biodiversity Habitat Corridor pursuant to Part B3 of Waverley Development Control Plan 2012 (DCP 2012).
Development adjoining the site consists of the following: 1. To the rear of site (north) is Council-owned land which form part of Diamond Bay Reserve. 2. To the east is 31 Kimberley Street, a two to three storey rendered dwelling with vehicle access to Kimberley Street. 3. To the west is 25 Kimberley Street, a three-storey residential flat building comprising three units with vehicle access to Kimberley Street.
The locality is characterised by a mix of single dwellings and residential flat buildings located at 25 and 33 Kimberley Street and 6-8 Kimberley Street across the road to the south.
The site is visible from the Diamond Bay Cliff walk.

Waverley Local Environmental Plan 2012

The development application seeks demolition which is permitted with consent pursuant to cl 2.7 of LEP 2012. No works are proposed on the portion of the site zoned RE1 Public Recreation under LEP 2012. The objectives of the RE1 zone are: • To enable land to be used for public open space or recreational purposes. • To provide a range of recreational settings and activities and compatible land uses. • To protect and enhance the natural environment for recreational purposes. • To facilitate and manage public access to and along the coastline for all. • To provide accessible links between and through open spaces.
Development for the purpose of a residential flat building is permitted with consent in the portion of the site zoned R3 Medium Density Residential. In determining the development application, I have had regard to the objectives of the two applicable zones.
The proposed development is compliant with the minimum lot size development standard in cl 4.1 of LEP 2012, noting that strata subdivision is excluded by cl 4.1(4) of LEP 2012.
The final amended plans are compliant with the development standard at cl 4.3 Height of Buildings in LEP 2012.
Clause 6.2 Earthworks in LEP 2012 applies to the development as it includes excavation works. The development application includes a geotechnical report from Alliance Geotechnical dated 17 June 2022 and a structural engineering report prepared by Acroyali Engineering dated 13 June 2022. Before granting development consent for earthworks, I have given consideration to these reports and the matters for consideration listed at cl 6.2(3) of LEP 2012. Further, the annexed conditions include conditions in respect to earthworks, geotechnical and structural engineering matters. I am satisfied the amended development application, these reports and the annexed conditions satisfy the requirements of cl 6.2 of LEP 2012.
Clause 6.14(3) Waste minimisation and recycling of LEP 2012 applies to the development and requires the Court to be satisfied of the following matters: (3) In deciding whether to grant development consent for development to which this clause applies, the consent authority must be satisfied - (a) the development maximises opportunities, through design and integration, to provide waste and recycling storage and collection facilities, and (b) all waste and recycling storage and collection facilities are appropriately sized to meet the waste generated by the occupants, and (c) the development provides for safe and equitable access to waste and recycling storage and collection facilities.
Having regard to the Site Waste and Recycling Management Plan and the amended development application I can be satisfied of the matters at cl 6.14(3) of LEP 2012.
Pursuant to cl 6.15(3) Stormwater management the consent authority much reach a level of satisfaction of the following matters: (3) In deciding whether to grant development consent for development to which this clause applies, the consent authority must be satisfied the development - (a) is designed to maximise the use of water permeable surfaces on the land, considering the soil characteristics affecting on-site infiltration of water, and (b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and (c) avoids significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or, if the impact cannot be reasonably avoided, minimises or mitigates the impact.
The Applicant has prepared Stormwater Plans by Torinex Consulting Engineers which responds to the matters listed at cl 6.15(3) of LEP 2012. Having considered these plans and the amended development application I am satisfied of the matters listed at cl 6.15(3) of LEP 2012.
The portion of the site zoned RE1 Public Recreation is part of a landscape conservation area. The amended development application includes a Heritage Impact Assessment by Zoltan Kovacs dated June 2022. Further, as part of the proceedings, a joint heritage report was prepared by Zoltan Kovacs for the Applicant and Colin Brady for the Respondent. Those experts agree that the amended development application does not generate any adverse heritage impacts on the landscape conservation area. In determining the development application, as required by cl 5.10(4) of LEP 2012, I have considered the effect of the proposed development on the significance of the landscape conservation area.

Variation to the Floor Space Ratio standard

The final amended plans are non-compliant with the floor space ratio (FSR) development standard at cl 4.4 of LEP 2012. The relevant map allows for the site to have a maximum FSR of 0.6:1. The FSR for the proposed development, excluding that portion of the site zoned RE1 Public Recreation, is 0.81:1. A written request to vary the FSR standard prepared by GSA Planning which addresses the matters set out at cl 4.6(3) of the LEP including having regard to the tests set out in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118.
Pursuant to cl 4.6(4)(a), the Court, in exercising the functions of the consent authority, must be satisfied of both of the matters in subcll 4.6(4)(a)(i) and (ii), being: (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…
Only if the requirements in subcll 4.6(3) and (4) are met will the power in subcl 4.6(2) to grant consent to development that contravenes the development standard be enlivened: Rebel MH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 per Preston CJ at [24].
I am satisfied, for the reasons outlined in the written request, that it is unreasonable and unnecessary to comply with the FSR control in the circumstances of this case as the objectives of the standard are met, notwithstanding the non-compliance. Further, I am satisfied that the grounds advanced in the written request are sufficient environmental planning grounds to justify contravening the development standard.
I am also satisfied that the proposed development will be in the public interest because it is consistent with the relevant objectives of the cl 4.4 development standard and the objectives for development within the R3 Zone in which the development is proposed to be carried out.
Finally, I accept after a consideration of the matters identified in cl 4.6(5) of LEP 2012, that the concurrence of the Planning Secretary is not required having regard to Planning Circular PS 20-002 dated 5 May 2020.
Having regard to all of the above matters I am satisfied that I should uphold the clause 4.6 variation request in relation to FSR.

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH)

Pursuant to s 4.6 of SEPP RH, a consent authority must not consent to the carrying out of development unless it has considered whether the land is contaminated. The site is not known to be contaminated and the historic residential use of the site does not suggest any risk of contaminated materials. The conditions of consent include at Condition 49, a condition for the appropriate management of asbestos if located during works (though there is not known to be any).

State Environment Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX)

The amended development application is accompanied by a BASIX certificate dated 11 July 2023, complying with the requirements of SEPP BASIX.

State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development 2002 (SEPP 65)

SEPP 65 applies as the building will be at least three storeys (subject to the proposed development) and contains at least four residential units (in accordance with subcll 4(1)(b) and (c) of SEPP 65).
For the purposes of cll 28(2) and 30(2) of SEPP 65, the Applicant has prepared a SEPP 65 Report and Design Verification Report, and I am satisfied that adequate regard has been given to (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide (ADG) for the relevant design criteria.

Environmental Planning and Assessment Regulation 2021 (EPA Regulation)

For the purposes of s 29 of the EPA Regulation, the Applicant has prepared a statement prepared by a qualified designer that verifies the qualified designer designed, or directed the design of the development, and explains how the development addresses the design quality principles and objectives in Parts 3 and 4 of the ADG.
Further, owners consent for agent lodgement was provided for the lodgement of the development application by the respective owners of both 27 and 29 Kimberley Street, Vaucluse: Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223 and Exhibit B.

Height

The Council confirms that its earlier contention that the proposed development should be refused because the height of the development is excessive, and fails to comply with the height standard at cl 4.3 of LEP 2012, is resolved by the amended development application. The associated issues identified in the public submissions arising from the height of the building proposed are addressed in the following.
I accept that the amended development application complies with the maximum height standard at cl 4.3 of LEP 2012.

Building bulk and scale

The Respondent contends that the proposed development should be refused because development fails to comply with cl 4.4 of LEP 2012, the floor space ratio control. This contention was the subject of joint conferencing of the planning experts. They note that the amended development application has reduced the FSR of the proposed development to 0.81:1.
The satisfaction of the matters at cl 4.6 of LEP 2012 in relation to the exceedance of the FSR standard is addressed at [26]-[32].
In their joint report, the planning experts agree that the amended plans satisfactorily address the direct physical and environmental impacts on neighbouring and surrounding properties. They conclude that on merit the exceedance of the FSR standard does not warrant the refusal of the development application. I accept their agreed evidence that on merit the exceedance of the FSR standard does not generate any detrimental impacts that are sufficient to warrant refusal of the development application.
At the hearing the Respondent confirmed that its earlier contention, that the proposed development should be refused because the bulk and scale of the development is excessive, is resolved by the amended development application.

View Impacts

The amended development application is supported by a view analysis prepared MH Studio and AE Design Studio and photomontages prepared by Byrne Associates. These documents were the subject of expert planning evidence. I have also reviewed these documents in assessing the merits of the development application.
DCP 2012 contains the following planning controls in relation to view sharing: "3.14 Views and View Sharing Objectives (a) To ensure that views are shared, providing equitable access to views from dwellings. (b) To protect and enhance views from streets and other public spaces. (c) To ensure that the desire for view does not conflict with privacy. Controls (a) New development should be designed to minimise view loss to adjoining and adjacent properties while still providing opportunities for views from the development itself (refer to Figures 23 and 24). (b) Provide articulation, and minimise the bulk and scale of roof forms on the low side of streets allowing views to the landscape beyond. (c) Design the landscape to allow for views between buildings, particularly on the low side of streets. (d) Where the property is adjacent to a Council park or reserve, private landscaping should be sympathetic to and complement the public domain landscaping in order to soften the public-private interface. (e) Existing significant public views and vistas available from the public domain, including but not limited to ocean, city and parks views are to be maintained where possible by the design of buildings. (f) In some instances a detailed view loss analysis may be required by Council. Refer to the Waverley Development Application Guide for more information. (g) Measures to be used to facilitate view sharing include buildings setbacks, gaps between buildings, floor heights, roof forms and use of open materials and balustrades on balconies and decks."
The planning experts agree that given the amended development application complies with the maximum height standard in LEP 2012. They give this compliance weight in concluding that any resulting view impact to 10 Kimberley Street is now acceptable.
I note that the public submissions made to the Court during the onsite component of the proceeding raised concern about the potential protrusion of photo voltaic cells above the roof plane. To minimize any potential view impact from the photo voltaic cells the following condition has been imposed on the consent: "2. General Modifications … (d) SOLAR PANELS Any solar panels mounted on the roof are to be positioned horizontal to the roof in order that the profile and visual appearance is minimised. The amendments are to be approved by the Executive Manager, Development Assessment or delegate prior to the issue of any Construction Certificate. An electronic copy of the amended plans or additional information (see website for electronic document requirements) addressing this condition, including a covering letter shall be provided to Council for review."
The planning experts agree that the reduction in overall height to be compliant with the maximum height standard, and the increased side setbacks in the amended plans, has resulted in acceptable view impacts to the units at 6 Kimberley Street.
Further, the planning experts agree that through the reduction of floor space in the northwest section of the proposed second floor the amended development application no longer impacts views from the living areas of affected apartments in 25 Kimberley Street.
The parties submit that any view impact arising from the proposed development is, on the evidence of the planning experts, acceptable.
Having reviewed the view analysis and photomontages which form part of the amended development application, the evidence of the planning experts and given weight to the provisions of DCP 2012, I am satisfied that the amended development application allows for views that are shared and provides reasonable equitable access to views from dwellings.
I accept the agreed submission of the parties that any view impacts arising from the development do not warrant the refusal of the development application.

Site Isolation

The Respondent's contention that the proposed development should be refused because it results in the isolation of 31 Kimberley Street was the subject of joint conferencing of the planning experts. I have considered their evidence in determining the development application.
DCP 2012 at C3.1 Site, Scale and Frontage contains the following development controls: "(c) Development is not to result in isolated sites with a minimum street frontage of: (i) 15m or less for R3 zones. (ii) 20m or less for R4 zones. In addition to the above, relevant side setbacks must be able to be achieved for any isolated sites."
The property at 31 Kimberley Street has a street frontage of approximately 10.4m. There is no minimum width requirement for a dwelling house or dual occupancy, both permissible uses in the R3 Medium Density zone. The amended development application increases the setbacks of the upper floors and the setbacks proposed are now compliant with the development controls in DCP 2012.
Further, I note that the submissions received from the public also raise the issue of site isolation. The submission makes reference to the planning principle established in Karavellas v Sutherland Shire Council [2004] NSWLEC 251 at [17]-[19]. Having considered the principle, I am satisfied on the evidence of the experts and the applicable planning controls that orderly and economic use of 31 Kimberley Street can be achieved despite the lack of amalgamation given the number of permitted uses that could be accommodated.
Considering the evidence of experts, the public submissions and giving consideration to the relevant planning controls I accept the agreed submission of the parties that this contention is resolved and that the variation to development control (c)(ii) at C3.1 of DCP 2012 is warranted.

Excavation

In their contentions, the Respondent argues that the proposed development should be refused because the excavation proposed was excessive.
The amended plans before the Court have increased the setback of the basement to a minimum of 2m and steps out to 3m along the eastern boundary. The planning experts agree that given these changes the amended development application resolves the Respondent's contention.
The public submissions raise concerns in relation to the depth of the proposed excavation and the potential for any geotechnical impacts that arise. Further, the residents raise concern that the level of excavation proposed may impact on adjoining properties.
Section B14 Excavation in DCP 2012 contains the following relevant controls: "Objectives (a) To minimise the impact of excavation on the natural environment, neighbouring properties, and streetscape. (b) To ensure the physical environment is preserved and enhanced through minimal site disturbance and the geotechnical stability of landfill and excavations. (c) To minimise cut and fill on sloping sites. (d) To encourage good quality internal environments including natural light and ventilation. (e) To prevent use of subterranean spaces as habitable rooms. (f) To prevent development exceeding the maximum car parking controls. (g) To ensure excavation does not adversely impact land stabilisation, ground water flows and vegetation. (h) To minimise structural risks to adjoining structures. Controls (a) Excavation should not add to the visual bulk and scale of the building. (b) Excavation should not result in the loss of naturally occurring sandstone. (c) Avoid cutting into the natural stone wall of a street. (d) Avoid and minimise excavation where possible. (e) Minimise the inclination of any resulting sloping landscaping. (f) Existing natural features including trees and sandstone walls should be retained and incorporated as landscape features on the site in order to maintain the natural character of the landscape. (g) Step retaining walls in response to the natural landform to avoid creating monolithic structures, particularly where visible from the neighbouring dwellings and the public domain. (h) For sites with significant slopes a split-level building design is to be used to minimise excavation and backfilling. (i) Fill is not to be used to raise the ground level. (j) Excavation for garaging within sandstone walls facing the street must be minimised to preserve as much of the original wall as possible. (k) Development should accommodate stormwater detention tanks and storage systems within the excavated area. (l) Excavation is not permitted within 900mm of side boundaries and shall only occur within the building footprint, except where access to a basement car park is required. (m) Basement car parking is to be located fully below natural ground level. Where this cannot be achieved due to topographic constraints, a maximum protrusion above ground of 1.2m is permissible (refer to Figure 25). (n) Where excavation is proposed for development which is subject to Part C3 of this DCP, it is not to occur within a 1.5m setback from side boundaries and shall only occur within the building footprint except where access to a basement car park is required."
The development application is accompanied by a Geotechnical Investigation Report prepared by Alliance Geotechnical and a Structural Feasibility Report prepared by Acroyali Engineering. In considering the merit of the Respondent's contentions and the concerns of the objectors, I have given consideration to these reports.
Consideration of cl 6.2 of LEP 2012 is addressed at [20].
In their joint report, the planning experts consider the Respondent's contention and the relevant planning controls. They conclude that given the increased setbacks in the amended plans (and the resulting reduced volume of excavation) the extent of excavation is not, of itself, a reason for refusal. Further, they recommend the imposition of conditions addressing the management of the excavation process to address management of groundwater seepage, noise and vibration and dilapidation reports. The annexed conditions appropriately address these matters.
In response to the concerns of the residents about the potential impacts on adjoining properties during construction, the annexed conditions include conditions addressing risk management and dilapidation reports including the following: "24. DETAILS OF EXCAVATION, SHORING OR PILE CONSTRUCTION A report shall be prepared by a suitably qualified and practising Structural Engineer/Geotechnical Engineer detailing the proposed methods of bulk excavation, shoring or pile construction, including details of vibration emissions and any possible damage which may occur to adjoining or nearby properties as a result of the proposed building and excavation works. Any practices or procedures specified in the Structural Engineer's report in relation to the avoidance or minimisation of structural damage to adjoining properties are to be fully complied with and incorporated into the plans and specifications together with the Construction Certificate. … 29. GEOTECHNICAL RISK MANAGEMENT The following geotechnical risk management measures shall be followed: The recommendations set out in the Geotechnical Investigation Report No: 11555-GR-1-3-Rev1, Revision 1, dated 17 June 2022, prepared by Alliance Geotechnical Pty Ltd must be addressed in the detailed design documentation and followed through the demolition and construction stages. A qualified Geotechnical Engineer must be engaged to review the full detailed design including the excavation support system. This review and findings must be submitted to the Principal Certifying Authority and Council outlining methodology in undertaking excavation works is suitable in this application prior to the release of a construction certificate. During the bulk excavation stages, a qualified supervising engineer will undertake regular site inspections at relevant critical stages of the bulk excavation. A daily log is to be kept and submitted to the Principal Certifying Authority. A comprehensive pre-demolition dilapidation report for the purpose of assessing vibration effects is required. The report is to cover at a minimum the following neighbouring properties 25 Kimberley Street, 27A Kimberley Street, 31 Kimberley Street and 33 Kimberley Street and is to be submitted to Principal Certifying Authority and Council prior to commencement of works. … 44. DILAPIDATION REPORT A Dilapidation report is to be prepared for any adjoining or nearby property that may be subject to potential damage as a result of any works being undertaken. The dilapidation report is to be made available to affected property owners. The report is to cover at a minimum the following neighbouring properties 25 Kimberley Street, 27A Kimberley Street, 31 Kimberley Street and 33 Kimberley Street and is to be submitted to Principal Certifying Authority and Council prior to commencement of works. The report is to be dated, submitted to, and accepted by the Principal Certifying Authority, prior to any work commencing on the site. Note: Any damage that may be caused is a civil matter. This consent does not allow or authorise any party to cause damage, trespass, or any other unlawful act and Council will not be held responsible for any damage that may be caused to adjoining buildings as a consequence of the development being carried out. Council will not become directly involved in disputes between the builder, owner, developer, its contractors and the owners of neighbouring buildings."
On the basis of the evidence, the amendments to the development application and the annexed conditions, I accept the agreed submission of the parties that this contention is resolved by the amended plans and the imposition of the annexed conditions.

Car Lift, Visitor Parking, Traffic impacts

The development application proposes a car lift to provide access to the basement parking. The public submissions raise concerns that there is potential for the use of a car lift to result in congestion in Kimberley Street and the surrounding streets due to the queuing of vehicles. As part of the amended development application, the Applicant has undertaken queuing analysis which concludes that: "6. The above calculations show that with a Peak hour arrival generation rate of 3 vehicles/ hour and a speed of a car lift of 0.4m/s. There is a probability of 0.15% that there will be more than one car requiring service from the car lift at a time. Accordingly, with the provision of no waiting bay while a car is being serviced by the car lift is acceptable and in accordance with the 98% percentile queue required by AS290.1:2004." (Exhibit A)
On the basis of the Applicant's technical assessment from a qualified traffic engineer that the proposed development will comply with the requirements of AS290.1:2004, I am satisfied that the proposed car lift will be acceptable.
The public submissions also raise concerns about the lack of visitor parking proposed and the current limited supply of on street parking in vicinity of the site.
The amended plans include provision for a visitor parking space in the proposed basement. The provision of one visitor parking space is compliant with DCP 2012. This requirement is reinforced by the following condition in Annexure A: "89. Car Parking A maximum of 7 car parking spaces are to be provided within the development, allocated in the following manner: i) 6 residential spaces ii) 1 visitor space Car parking spaces are to be allocated with the rates in the DCP, with more than 2 spaces allocated to any residential unit/dwelling. All spaces are to be appropriately marked."
Given that the control in DCP 2012 is achieved, s 4.15(3A)(a) of the EPA Act operates to preclude more onerous standards from being required.
Finally, the public submissions raise a number of concerns about the traffic and parking impacts of construction. In particular those concerns centred on hours of construction, traffic congestion arising from deliveries especially during school drop off and pick up, and the impact of the narrowness of Kimberley Street on the feasibility of deliveries from large vehicles.
The Applicant and the Respondent submit, and I agree, that these concerns have been appropriately considered and addressed by the following conditions imposed on the development consent: "TRAFFIC MANAGEMENT 30. CONSTRUCTION TRAFFIC MANAGEMENT PLAN (CTMP) The applicant is to submit a Construction Traffic Management Plan (CTMP) for the approval of Council's Executive Manager, Infrastructure Services, or delegate prior to the issue of any Construction Certificate. The CTMP must show that any loading of vehicles during excavation must not occur on the street. For further information on what is required in the CTMP, please refer to Council's website at: https://www.waverley.nsw.gov.au/building/development_applications/post_determination/development_applications_-_conditions_of_consent … 47. NOISE MANAGEMENT PLAN - DEMOLITION, EXCAVATION AND CONSTRUCTION A site specific Noise Management Plan, prepared by a suitably qualified acoustic consultant (as defined in the advisory section of this consent) must be submitted to the satisfaction of Council's Executive Manager, Compliance (or delegate) for demolition, excavation and construction works. For further information on the requirements, refer to Council's website: https://www.waverley.nsw.gov.au/building/development_applications/post_determination/development_applications_-_conditions_of_consent … 53. CONSTRUCTION HOURS Demolition and building work must only be undertaken between the hours of 7am and 5pm on Mondays to Fridays and 8am to 3pm on Saturdays, with no work to be carried out on Sundays and public holidays. Excavation works involving the use of heavy earth movement equipment, including rock breakers and the removal of fill from the site, must only be undertaken between the hours of 7am and 5pm on Mondays to Fridays, with no such work to be carried out on Saturday, Sunday or a public holiday. Noise from construction activities shall comply with the Protection of the Environmental Operations (Noise Control) Regulation 2017."
Finally, the annexed conditions include the requirement for a sign to be placed on the site which is required to include the contact details of the principal contractor. This will provide an access point for the community in relation to the management of construction on the site.

Overshadowing

Both the public submissions and the Respondent's contentions raised concerns that the proposed development would increase overshadowing to the residential property at 31 Kimberley Street.
The amended development application includes architectural plans which assess and quantify the existing and proposed shadow affectation to this property. Those plans demonstrate that the proposed development will have a shadow impact that is less than that which would arise from a development envelope compliant with the planning controls. I note that the planning experts agree that for 31 Kimberley Street the overshadowing impacts are, in essence, balanced with areas of increased overshadowing offset by areas of solar gain.
Further, the plans assess the overshadowing impact to 25 Kimberley Street, to the west of the subject site. Those plans demonstrate that the proposed development will have a shadow impact limited to 9am in mid-winter.
On the basis of the evidence, the amendments to the development application and the annexed conditions, I accept the agreed submission of the parties that this contention is resolved by the amended plans.

Privacy

In their joint report, the planning experts reached agreement that the amended plans provide an appropriate privacy relationship between the proposed development and the adjoining properties. In part this is achieved by the compliance of the development with the setback controls in DCP 2012 and the addition of permanent privacy screens to the proposed balconies and private open spaces to restrict overlooking. Window screening has also been incorporated into the architectural design of the boundary windows. I am satisfied that these changes, along with the requirements of Condition 2(c) in Annexure A, appropriately address the concerns raised in the public submissions.
On the basis of the evidence and the amendments to the development application, I accept the agreed submission of the parties that this contention is resolved by the amended development application.

Acoustic Privacy - car lift

The potential for the proposed car lift, and other mechanical plant, to create adverse noise impacts was raised in the submissions. I am satisfied that this likely impact of the proposed development has been adequately considered by the parties and is addressed by the imposition of the following condition: "42. NOISE - ACOUSTIC REPORT An Acoustic Assessment Report prepared by a suitably qualified acoustic consultant shall be prepared to assess the impacts of the development (internal and external areas) including any mechanical plant, refrigeration motors and air conditioning units and make recommendations to ensure that the noise from the development will be within the acceptable limits of the Protection of the Environment Operations Act 1997 and relevant legislation. The plan must be submitted to the satisfaction of the Principal Certifying Authority or Council's Executive Manager, Compliance (or delegate). Note: Any management measures recommended in the acoustic report shall be incorporated into a Plan of Management, which will be required to be submitted to Council for approval prior to the issue of an Occupation Certificate. For further information on the requirements, refer to Council's website: https://www.waverley.nsw.gov.au/building/development_applications/post_determination/development_applications_-_conditions_of_consent"
I accept the agreed submission of the parties that this matter is resolved.

Retention of the Norfolk Pine in the front setback

The amended development application is accompanied by an Arboricultural Impact Assessment Report prepared by Botanics Pty Ltd. That report was considered by the Respondent during the assessment of the development application who recommended amendments to the proposed development to ensure the retention of the Norfolk Island Pine tree located in the front setback of the subject site.
The amended development application has reduced the extent of intrusion of the development in the tree protection zone and meets the recommendations of the Respondents expert. The annexed consent conditions (specifically Conditions 64 and 65) include appropriate conditions to ensure the safety and vigour of the Norfolk Island Pine and the street tree in the frontage of the site.
I accept the agreed submission of the parties that this matter is resolved.

Conclusion and Orders

For the above reasons, each of the contentions raised by the Council on the appeal have now been addressed through the amendments to the proposed development, conditions of development consent or on the basis of expert evidence. Further, I am satisfied that the preconditions to the exercise of the Court's jurisdiction have been met. It is therefore appropriate to make orders in accordance with the signed consent orders, which are for development consent to be granted subject to the conditions of consent that are agreed by the parties.
The Court, exercising the functions of the Respondent, Waverley Council, as the relevant consent authority under s 38(1) of the Environmental Planning and Assessment Regulation 2021, agrees to the Applicant amending Development Application DA-291/2022 in accordance with the following amended plans and documents: 1. Architectural Plans prepared by PBD Architects of Project No. 2206 including the following: Plan Number and Revision Plan description Plan Date DA020 Issue I Site Plan 14/06/2023 DA100 Issue U Basement Plan 22/06/2023 DA101 Issue R Ground Floor Plan 14/06/2023 DA102 Issue R First Floor Plan 14/06/2023 DA103 Issue AA Second Floor Plan (Street Level) 14/06/2023 DA104 Issue X Third Floor Plan 14/06/2023 DA105 Issue J Roof Plan 14/06/2023 DA200 Issue O Elevation - North 14/06/2023 DA201 Issue O Elevation - South 14/06/2023 DA202 Issue O Elevation - East 14/06/2023 DA203 Issue O Elevation - West 14/06/2023 DA300 Issue P Sections A & A1 14/06/2023 DA310 Issue I Section B 14/06/2023 DA311 Issue F Sections C & D 14/06/2023 DA312 Issue F Section E 14/06/2023 DA400 Issue F Materials Schedule 14/06/2023 DA540 Issue C Adaptable Unit 14/06/2023

BASIX 1312517M_05 dated 12 July 2023. 2. Design Verification Statement prepared by PBD Architects, Ref: 7768 dated June 2023. 3. Clause 4.6 Exceptions to Development Standards - Floor Space Ratio (FSR) prepared by GSA Planning dated June 2023.
The Court orders that: 1. The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of this amendment, as agreed or assessed. 2. The written request pursuant to cl 4.6 of Waverley Local Environmental Plan 2012 (WLEP), seeking a variation of cl 4.4 - Floor space ratio of WLEP, prepared by GSA Planning dated June 2023 is upheld. 3. The appeal is upheld. 4. Development Application DA-291/2022 for the demolition of the existing structures, excavation and construction of a four-storey residential flat building development including four residential apartments above a basement level car park, strata subdivision, associated landscaping and a swimming pool at rear, at the properties known as 27 and 29 Kimberley Street, Vaucluse being Lot 1 in DP 560890 and Lot 2 in DP 1056298, is determined by the grant of consent, subject to the conditions of consent at Annexure A. 5. The exhibits are returned with the exception of Exhibit 1, 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. Decision last updated: 02 August 2023

(2010) 177 LGERA 312

(2018) 236 LGERA 256

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