Mecone Pty Limited v Waverley Council

Land and Environment Court (NSW)|2015-07-28

Solicitors: Mr M Sonter, Gadens (Applicant) Mr S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 10332 of 2015

The site and locality

The site has a primary frontage to Oxford Street of 27.88m, a secondary frontage to Pine Lane of 23.9m, side boundaries of 43.04m (east) and 47.25m (west) and area of 1171sqm. It is located between Bondi Road and Adelaide Street/Hollywood Avenue and falls from Pine Lane to Oxford Street with a level difference of around 5m.
The surrounding area is characterised by high density residential, retail and commercial uses that form part of the Bondi Junction commercial centre. The Bondi Junction rail and bus interchange is approximately 250m to the west. The site is adjoined by a 15 storey mixed use (retail/commercial/residential) building to the west and a 14 storey mixed use building to the east.

Background and the proposal

On 29 July 2014 the Court granted consent for the demolition of the existing structures at the site and construction of a mixed use development including residential units, retail space and basement car parking including landscaping and associated works (see Legacy Property Pty Ltd v Waverley Council [2014] NSWLEC 1150) (approved development).
That consent was modified by the Sydney East Joint Regional Planning Panel on 18 December 2014 and further modified by that panel on 15 July 2015.
The application proposes the construction of an additional two floors atop the proposed building, levels 21 and 22. A total of 10 units would be accommodated within those two levels.
A Voluntary Planning Agreement (VPA) was lodged with the application and proposes to fund additional open space in the vicinity of the development. The council has not progressed the VPA as it is not, according to the evidence, in the form expected under its policy and the necessary independent valuation of the works had not been undertaken.

The issues

The contentions in the case are whether the development is in the public interest, the impacts of the additional building height and floor space are appropriate and the objection to those development standards is well founded. A contention in relation to compliance with the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP65) as it applied at the time the application was lodged and the associated Residential Flat Design Code (RFDC) was not pressed as the council agreed it could be addressed through consent conditions.

The planning controls

The site is zoned B4 Mixed Use under Waverley Local Environmental Plan 2012 (LEP). The use is permissible with consent in that zone, the objectives of which are: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To encourage commercial uses within existing heritage buildings and within other existing buildings surrounding the land zoned B3 Commercial Core.
Part 4 of the LEP contains Principal Development Standards and clauses 4.3 Height of Buildings and 4.4 Floor Space Ratio are relevant to the application. The objectives of those clauses are: Height of Buildings (a) to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties, (b) to increase development capacity within the Bondi Junction Centre to accommodate future retail and commercial floor space growth, (c) to accommodate taller buildings on land in Zone B3 Commercial Core of the Bondi Junction Centre and provide an appropriate transition in building heights surrounding that land, (d) to ensure that buildings are compatible with the height, bulk and scale of the existing character of the locality and positively complement and contribute to the physical definition of the street network and public space. Floor space ratio (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, scale, streetscape and existing character of the locality, (d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality.
The maximum height provided for the site under clause 4.3 is 60 metres and the maximum floor space ratio (FSR) is 6:1.
At the time the application was lodged the LEP included clause 4.4B which was in the following form: 4.4B Incentives for providing affordable rental housing (1) The objective of this clause is to increase the supply of affordable rental housing for very low, low and moderate income earning households by providing incentives for the development of new affordable rental housing. (2) This clause applies to development for the purposes of residential flat buildings, or a mixed use development that contains shop top housing, if: (a) the development is on land identified as "Area 1" on the Floor Space Ratio Map, and (b) the development comprises at least one dwelling that is to be used for the purposes of affordable housing. (3) Despite clause 4.4, development consent may be granted for development to which this clause applies that has a gross floor area of no more than: (a) the maximum gross floor area that would be permitted for development on that land calculated by using the maximum floor space ratio shown on the Floor Space Ratio Map for that land, plus (b) an additional area of 15% of that maximum gross floor area (the affordable housing incentive). (4) Development consent must not be granted for development to which this clause applies unless conditions are attached to that consent to the effect that: (a) at least 50% of the area of the affordable housing incentive for the development will be allocated to one or more dwellings providing affordable housing in the development, and (b) for at least 3 years from the date of the issue of the occupation certificate for the development: (i) the dwelling or dwellings will be available for rent as affordable housing, and (ii) all such accommodation will be managed by a registered community housing provider, and (c) a restriction will be registered, before the date of the issue of the occupation certificate, against the title of the property on which development is to be carried out, in accordance with section 88E of the Conveyancing Act 1919, that will ensure that the requirements in paragraph (b) are met. (5) Subclause (4) does not apply to development on land owned by a public authority or to a development application made by, or on behalf of, a public authority or a registered community housing provider. (6) For the purposes of the definition of affordable housing in the Act in its application to this clause, a household is taken to be a very low income household, low income household or moderate income household if the household: (a) has a gross income that is less than 120 per cent of the median household income for the time being for the Sydney Statistical Division (according to the Australian Bureau of Statistics) and pays no more than 30 per cent of that gross income in rent, or (b) is eligible to occupy rental accommodation under the National Rental Affordability Scheme and pays no more rent than that which would be charged if the household were to occupy rental accommodation under that scheme. Note. The Act defines affordable housing to mean housing for very low income households, low income households or moderate income households, being such households as are prescribed by the regulations or as are provided for in an environmental planning instrument.
Clause 4.4B was repealed on 30 January 2015, a month after the application was lodged. The clause was used by the applicant in obtaining additional floor space from that provided under clause 4.4. In Legacy the FSR approved was 7,871sqm, being 845sqm in excess of the 7,026sqm permitted for the applicable 6:1 FSR under clause 4.4. That provided for an additional 12 percent GFA which Pearson C found was acceptable because 8 units were to be allocated as affordable housing (427sqm or 50.53% of the additional floor space) and that GFA did not impact on immediately adjoining or neighbouring properties. The development complied with the building height development standard.
Clause 4.6 of the LEP provides for Exceptions to development standards. The applicant relies on two written objections, one to the building height and the other to the FSR development standard.
SEPP65 and the associated RFDC are relevant to the application as is the Waverley Development Control Plan 2012 - Amendment No 2 (DCP).
The council has a policy that applies to Voluntary Planning Agreements. At the time the development was approved, that policy was entitled Waverley Council Interim Voluntary Planning Agreement Policy 2013. Waverley Council Planning Agreement Policy 2014 (VPA Policy) took effect on 21 October 2014 and applied when the application was lodged.
The objectives of the VPA Policy are: (a) to establish a fair, transparent and accountable framework governing the use of planning agreements by the Council; (b) to explore the range and extent of development contributions made by development towards public facilities and other public benefits in the Council's area; (c) to set out the Council's specific policies and procedures relating to the use of planning agreements within the Council's area; (d) to give all stakeholders in development greater involvement in determining the type, standard and location of public facilities and other public benefits; and (e) to facilitate public participation and to allow the community to gain an understanding of the benefits of appropriate planning agreements for the provision of public benefits. (f) to enhance the understanding within Council's area as to possibilities for development and associated public benefits and planning benefits facilitated by planning agreements in the Bondi Junction Precinct Area and Bondi Beach Precinct Area.
The VPA Policy provides: Within the Bondi Junction Precinct Area and Bondi Beach Precinct Area as an incentive towards the provision of development contributions to be applied towards public benefits and planning benefits, Council may consider, subject to its statutory obligations and other matters set out in this Policy or any other relevant Council policies, plans or procedures: a) applications for development up to an additional area of 15% of maximum gross floor area permitted under clause 4.4 of WLEP 2012.
The policy includes the following provision: Council will not enter a planning agreement unless it is satisfied that the proposed development is acceptable on planning grounds having regard to the general heads of consideration set out in Section 79C of the Act. Development that is unacceptable on planning grounds will not be given consent because of benefits offered by a developer. It is noted that any exceptions to relevant development standards will be assessed in accordance with the provisions set out in cl.4.6 of WLEP 2012.
In accordance with Clause 2.4 10% of all planning agreement contributions will form a monetary contribution to Waverley's Affordable Housing Program fund. Clause 5.12 sets out how council determines the amount of monetary contribution payable for additional FSR and is generally the value of 50% of the increase in net value to the development arising from an increase in FSR beyond the provisions in clause 4.4 of the LEP with the value determined by an independent valuer and the costs of engaging that valuer borne by the applicant.

The evidence

The hearing commenced adjacent to the site as the approved development has commenced and access was not provided. Evidence was given on site by the owners of units 103 and 106, 2A Hollywood Avenue, Bondi Junction (the Oscar). Those units are three and two storeys respectively.
Their primary concern was the impact of the proposed development on views available from their units with other issues relating to the bulk and proximity of the building, the expectation that development will comply with the provisions of the LEP and the dissatisfaction of increased height available through a Voluntary Planning Agreement.
The view included a walk around the site with those developments said by the council to be impacted in terms of solar access observed and assessed by the experts in these proceedings. Two public reserves, Eora Park and Fingleton Reserve were also viewed.
Expert town planning evidence was heard from Mr M Gheorghiu for the applicant and Mr S McDonald for the council. They had prepared a Joint Report, Exhibit 3 and two supplementary reports, Exhibits 4 and 5. Exhibit 4 corrected details of the approved building height which, to the lift overrun, is 0.5m less than that discussed in Exhibit 3 and 150mm less to the top of the communal open space. Exhibit 5 further discusses the objections to the development standard lodged under clause 4.6 of the LEP.
The experts agree that the height of the building exceeds the 60m maximum permitted under clause 4.3 of the LEP. They selected datum points in Oxford Street and Pine Lane to determine the building height. Due to the slope of the site, that difference varies. Table 2 to Exhibit 3 details the height above the development standard. From the Oxford Street ground level that ranges from 7.46m to the top of parapet to 12.01m to the lift overrun whereas in Pine Lane it varies from 2.62m to 7.17m respectively.

Solar access

The experts assessed the overshadowing generated by the proposal on the following properties utilising modelling included in their Joint Report:

Building A of No 2A Hollywood Avenue;
Building B of No 2A Hollywood Avenue;
4-12 Waverley Street;
15-19 Waverley Crescent;
32-34 Waverley Street;
36-38 Waverley Street;
42-48 Waverley Street; and
Eora Park.

Mr Gheorghiu says the impact of the development on Building A at No 2A Hollywood Avenue is minimal and for Building B is not significant, with the impact fast moving. 25 of the 27 relevant affected units in the Oscar maintain a minimum of 3 hours of solar access, which equates to 93% of units with 48% of impacted units achieving 4 or more hours solar access. Mr McDonald says there are 27 units in Building A that will receive less sunlight than enjoyed as a result of the approved development and the additional overshadowing impacts on living areas and balconies extends across the building for a 3.5 hour period from 9.30am until 1pm impacting on 27 units to varying extents during this period. Some units will lose up to 1.5 hours of direct sunlight between 9am and 3pm mid-winter as a result of the development. In regard to Building B, Mr McDonald says the shadow impacts to levels 1 and 2, including outdoor open space, extends from 11.45am to 1.15pm with some units already receiving less than 2 hours direct solar access midwinter being worse off as a result of the proposal.
In regard to Nos 4-12 Waverley Street Mr Gheorghiu notes that the building includes north and east facing wrap-around balconies to living rooms to north facing units and south and east facing warp-around balconies to living rooms to south facing units with the eastern façade mainly consisting of kitchen, bathrooms and/or bedrooms. The existing shadows generated by the adjoining properties and the orientation of the property result in the building generating a shadow on itself from approximately 10am, the affected units do not currently receive sufficient solar access between 9am and 3pm and rely on ambient light as a light source. While the units receive some light in the morning between 8am and 9am, that is not consistent with the 9am to 3pm period considered relevant under the RFDC so he concludes the proposal does not generate a significantly worse outcome between the period of 9am to 3pm.
Mr McDonald says from 8.15am additional shadow occurs on the north eastern corner on Level 13 and 14 to the glass enclosed "gardens" adjoining bathrooms and bedroom windows. These windows receive the only direct sunshine between the hours of approximately 8.15am and 10am, with approximately 15 minutes of direct sunshine lost during that period. At 8.30am additional shadow occurs on the eastern elevation at an angle impacting units on the north-east corner on levels 12 and 13 and part of the rear units on level 12 and 11. The shadow includes the north and eastern facing wrap-around balcony to the living area and a bedroom and to the east facing window of the north facing units. The balconies are in shadow from other development by 8.45am and so lose the morning sunshine that would otherwise be available resulting from the approved development. The shadow also extends ot the large east facing wrap-around balcony to the living rooms to the south facing units on levels 10, 11 and 12 as well as east facing bedroom windows. These balconies currently receive approximately 2 hours direct sunlight between the hours of 8am to 10am (or approximately 1 hour between the RFDC defined hours and this will be reduced by approximately 15 minutes in the period from 8.30am.
By 9am additional shadow occurs on eastern elevation parts of levels 7, 8 and 9 and again includes the living room balconies that would otherwise be experiencing direct sunlight at this time and for a period up to approximately 10am. In the case of all of the affected units in that building, they all appear to currently receive less than 2 hours direct sunlight between 9am and 3pm and this will be further reduced by the proposal.
Mr Gheorghiu says No 15-19 Waverley Crescent is impacted on the western façade between 2.30pm and 3pm however the specific affected units only experience an additional loss of solar access for up to 15 minutes before the existing shadows cover the building. The building's northeast orientation as well as its width along its frontage benefits the majority of residential units within the development, maximising their solar access. Mr McDonald agrees the impact is from 2.30 to 3pm to levels 4-8 and impacts on balconies and living areas.
For 32-34 Waverley Street, Mr Gheorghiu says the impact is to the northern façade with these units having balconies and living areas that face north. The shadow generated by the proposal only slightly impacts the balcony of the fourth floor apartment, on the north-western corner of the building however the shadow does not penetrate deep into the balcony. Between 2 and 2.15pm the top level units are impacted but for only 15 minutes of the day which is negligible when taking into account the total amount of solar access those units receive over the entire day, which is greater than 2-3 hours.
Mr McDonald says that building is impacted between 1.45 and 2.15pm with two top level balconies experiencing full shadow during this period as a result of the development.
No 36-38 Waverley Street is a similar building to that at No 32-34 and Mr Gheorghiu says the shadow generated by the proposal impacts the property between 2pm and 2.30pm however, between 2.15pm and 2.30pm the middle level units are already in shadow by the existing shadow. Therefore the degree of impact varies across the various units from between 15 to 30 minutes and is considered to be minor when taking into account the total amount of solar access those units receive over the entire day, which is greater than 2-3 hours. Mr McDonald says the impact is similar to that at No 32-34 but between 2.00 and 2.45pm with the top level balconies experiencing full shadow.
According to Mr Gheorghiu's evidence, No 42-48 Waverley Street receives shadow from the proposed development between 2.30pm and 3pm however at 2.30 the shadow is only across a small portion of the ground level, north-western corner of the building. At 2.45 the shadow starts to impact the first floor of the north western corner of the building. The existing shadow at 3pm extends across all the lower levels units between ground floor and the second floor and starts to creep into the third storey. The proposal at 3pm generates a shadow on the north-western corner unit on the third level. The affected units face north and for most part of the day receive a significant amount of solar access. As such, he says the shadow generated by the proposal that impacts the relevant units by approximately 15 minutes is negligible. Mr McDonald says the additional shadow is to the north facing units across ground level and levels 1-3 above with private open space and living rooms overshadowed between 2.30 and 3pm.
In relation to the overshadowing of Eora Park, Mr Gheorghiu says it maintains a minimum of 3 hours of direct sunlight in midwinter which is acceptable and a minor change from the approved development. Mr McDonald says there will be additional and avoidable overshadowing of Eora Park for a period of approximately 1 hour between 10.15-11.15pm mid-winter with the greatest additional impact for the 30 minute period between 10.30am and 11am across the central section of the Park. The overshadowing impact to Eora Park is, of itself, not of determinative weight but is representative of the cumulative environmental impacts associated with the development.
Mr Gheorghiu concludes the overshadowing impact generated by the proposal is minor and reasonable and therefore an acceptable environmental outcome. While the overshadowing affects a number of buildings, the overshadowing moves across the relevant buildings quickly therefore generally having an impact over short periods of time.
Mr McDonald says the overshadowing impact is widespread, affecting at least the 7 multi-unit developments assessed above to some extent and in some cases with an impact up to and including the loss of 1.5 hours direct sunlight mid-winter. In the case of two affected properties, being 4-12 Waverley Street and Building B 2A Hollywood Avenue, the private open space of affected units receiving less than 2 hours mid-winter (based on the approved development) will be further impacted, removing some of the limited solar access they would otherwise receive. This additional impact is a direct result of the non-compliance with the building height standard and the FSR standard under the LEP with both standards substantially breached.

View impact

The views that were assessed involved the two units within the Oscar development, the subject of objection by the owners of those units and viewed by the Court:

Unit 103 - balcony level;
Unit 103 - First floor level;
Unit 103 - Second floor level;
Unit 106 - Balcony to living area;
Unit 106 - First floor level to bedroom.

The modelling used had not been adjusted to reflect the variation in levels of the approved building discussed at [26].
The experts agree that the proposal generates additional view loss impacts however disagree on the planning merit/acceptability of that impact.
In terms of the change in levels, they agree that, when viewed from the first floor bedroom balcony of unit 106, the lift overrun interrupts the panoramic uninterrupted view to the horizon. At the correct RL150.3 the lift overrun will sit along or just below the horizon when viewed from a standing position.
That overrun, when viewed from the top level sitting room of unit 103 will sit comfortably below the horizon when viewed from a standing position and may possibly be below the horizon and the uninterrupted panoramic view when viewed from a seated position.
Mr McDonald says these views are of very high amenity value to the respective units and the fact that the maximum height of the approved development maintains these uninterrupted views is a significant and positive environmental planning outcome. Mr Gheorghiu says that the views affected are not the main living areas. The main living areas are located off the lower balcony levels where the development as approved already interrupts the panoramic views and extends beyond the horizon.
Mr Gheorghiu says the view loss impact generated by the proposal is minor and reasonable and therefore an acceptable environmental outcome. The balcony level to units 103 and 106, which are located from their respective living units, would already view the approved development as it extends beyond the horizon. Under the current approved scenario the views from the balconies around the development are wide and maintained to iconic views and features. The additional scale as proposed does not reduce/narrow the available width of the view maintaining the iconic views. He conceded the iconic view to Manly would be lost.
Mr McDonald says the view loss impact results directly from the non-compliance with the building height standard and the FSR standard with the additional two levels being proposed resulting in a development of significantly greater height and impact than would reasonably be anticipated. The impact is both avoidable and unacceptable as a result.

Public Interest

Mr Gheorghiu says the monetary contribution offered under the draft VPA is more than commensurate with the environmental impact being generated by the additional two levels and provides for an identified need for improved and/or greater public open space within the Bondi Junction area. The draft VPA provides funding to acquire additional land to expand Fingleton Reserve and would be in the public interest and have a significant contribution to improving public open space. He says that contribution would significantly outweigh the associated environmental impacts of the proposal and is an offer that far exceeds that which would be payable under the council's VPA Policy.
Mr McDonald says the council has not agreed to enter into a Planning Agreement so the public interest outcomes will not arise. The existing consent for the site secured a public benefit by way of the provision of affordable housing and this benefit was recognised by way of allowing additional floor space, consistent with the provisions of clause 4.4B that applied at the time the application was granted. He says there is to be no further material public benefit associated with the current application and that the public interest would be best served by maintaining the current consent and not adding additional development that departs substantially from the core development standards of FSR and building height.

Clause 4.6 written objection

Mr Gheorghiu prepared the written objection to the development standards for building height and FSR and also an addendum to that objection which was considered in the expert's Addendum Report 2, Exhibit 5. The latter argues the council has inherently abandoned the 60m building height development standard.
In his primary objection, Mr Gheorghiu states that non-compliance with the development standard would not hinder the attainment of the objects included in Section 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979 (EP&AAct); the variation is appropriate given the strategic planning location and value of the site and capable of accommodating greater density and is consistent with the relevant zone objectives and the objectives of the development standards.
Compliance with the development standards is said to be unreasonable and unnecessary as the proposal generates minor but acceptable environmental impacts (overshadowing and view loss), achieves view sharing to iconic views, there is a lack of cumulative environmental impacts while meeting the relevant land use zone, floor space ratio and building height development standards objectives and the proposal satisfied numerous planning grounds, including the relevant objectives, demonstrates minor environmental impacts, is suitable for the site, includes a significant public benefit offer and is within the character and context of surrounding development.
In terms of environmental planning grounds, Mr Gheorghiu says the development would result in the provision of a significant public benefit to the locality and local residents in terms of the offer made in the draft VPA. The provision of funds under the VPA will facilitate the timely upgrade, as identified in the council's Play Space Policy, of the public recreation areas in the vicinity of the site and Bondi Junction Town Centre. This is an environmental planning ground that justifies contravention of the standard. In addition, he says the breach of the development standards provide for an increase in density in a highly accessible centre which has been identified in the East Subregion Draft Subregional Planning Strategy and will increase density in a highly accessible location, furthering the attainment of the land use zone objectives to maximise public transport patronage while integrating suitable uses in a highly accessible location.
He summarises the environmental planning grounds as providing a development that is appropriate in its context, achieves a high quality design; responds to the site constraints and generates minor environmental impacts.
Mr Gheorghiu says the development is in the public interest and consistent with the land use zone and development standards objectives.
In terms of those matters required to be considered by the Secretary in determining whether concurrence would be granted, Mr Gheorghiu says contravention of the development standards does not raise any matter of State and regional environmental planning significance; that maintaining the development standards would result in a limited public benefit to the top level apartments within the Oscar development where the application is supported by a significant public benefit offer that would benefit the wider community.
In his Addendum, Mr Gheorghiu states the council has inherently abandoned the 60 metre development standard as a result of approving developments in the vicinity that exceed the height of buildings development standard and through the council's policies encourages and permits the development standard to be breached so that strict compliance with the height and FSR standard has been abandoned. In terms of the former he identifies 8 properties in the vicinity of the site said to be relevant.
In their Joint Report, Addendum 2, the experts agree that of the 8 properties cited only two approvals are relevant to consider, those approved under the LEP and subject to clause 4.6 variations to building height with one also subject FSR variation under the VPA Policy. Other approvals were issued under former planning instruments and did not include variation to development standards under clause 4.6 of the LEP.
The two sites considered relevant are No 570 Oxford Street (opposite the site) and No 241-247 Oxford Street (corner of Oxford and Hollywood Avenue).
Mr McDonald says that on reviewing the assessment reports for those buildings both developments have been determined to generate acceptable environmental impacts and in the case of No 570 the 15% additional floor space complied with the then clause 4.4B and the height variation was minor. In the case of No 241-247, the 15% variation to floor space complied with the then VPA policy and the building height variation was assessed to have no unacceptable overshadowing or view impacts.
Mr Gheorghiu says that council has applied two varying mechanisms over two different projects that encourage a breach in the development standards. He questions the adequacy of the council's assessment of the applications and cites level differences that suggest the variation to height controls is greater than stated and therefore the impacts from overshadowing and view loss may also be greater.

Conclusion and findings

Clause 4.6 of the LEP imposes a precondition to a consent authority exercising the power to grant consent to development on land to which the clause applies and if I am not satisfied that the provisions of the clause are met, consent cannot be granted.
Clause 4.6 is in the following form: (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence……………….
This imposes a number of tests, the first that compliance with the development standard must be unreasonable or unnecessary in the circumstances of the case, the second that there are sufficient environmental planning grounds to justify contravening the development standard, the third that the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3) and the fourth, that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. In addition, satisfaction of those matters that must be considered by the Secretary in determining whether concurrence should be granted is required.
As acknowledged by Mr Gheorghiu in his written submission, it is not sufficient to demonstrate the first test is met through the achievement of the fourth. They are two different tests.
Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 sets out five ways of demonstrating that compliance with a development standard is unreasonable or unnecessary. They are: 1. The objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. The underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary; 3. The underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable; 4. The development standard has been virtually abandoned or destroyed by the council's own actions in granting consents departing from the standard; 5. The zoning of particular land was unreasonable or inappropriate so that a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to the land.
In his primary objection Mr Gheorghiu did not follow any of these paths but rather submitted that compliance with the development standards is unreasonable and unnecessary as the proposal generates minor but acceptable environmental impacts, achieves view sharing to iconic views, there is a lack of cumulative environmental impacts while meeting the relevant objectives of the land use zone, floor space ratio and building height development standards and because the proposal satisfied numerous planning grounds, including the relevant objectives, demonstrates minor environmental impacts, is suitable for the site, includes a significant public benefit offer and is within the character and context of surrounding development. Having regard to the evidence, I am not satisfied that these reasons demonstrate compliance with the building height control is unreasonable or unnecessary, particularly as I do not agree that the impacts of the development are minor and the submission as made does not go to the objectives of the zone or development standards, this having to be addressed independently under clause 4.6(4)(a)(ii).
As none of the 5 paths in Wehbe had been followed originally Mr Gheorghiu supplemented his objection with the Addendum that argues the council has virtually abandoned the development standards through its actions in approving developments that depart from the standard, the fourth path.
From the evidence available, I am not satisfied that the council has abandoned the development standards for building height and floor space ratio either through the granting of consent to the two buildings in vicinity of the site and described at [59] or through the adoption of its VPA Policy.
As agreed by the experts these are the only two sites that are relevant to consideration and I have no evidence as to how many applications have been determined by the council or other consent authorities within the Bondi Junction CBD since the adoption of the LEP. Two examples, even if they are the only consents issued for new buildings in the CBD since the LEP was adopted in October 2012, is not sufficient to demonstrate the controls have been abandoned.
Similarly, the adoption of the VPA Policy does not demonstrate the council is abandoning the development standards. The policy is not mandatory and therefore does not have to be taken up by a developer. If the option is exercised, the additional floor space can be provided within a building without necessarily increasing the building height, for example by a larger building base which may be appropriate in a CBD which caters for retail and commercial development as well as residential development. For that reason I do not accept the policy abandons the building height control. Nor does it abandon the FSR control, it establishes circumstances where it may be appropriate to vary it and provides the terms where that would be acceptable. I do not consider that constitutes abandonment or destruction of the standard.
Finally, the repeal of clause 4.4B of the LEP reinforces the FSR development standard. For these reasons, I am not satisfied the written objection has demonstrated compliance with the development standards is unreasonable or unnecessary.
In terms of whether there are sufficient environmental planning grounds to justify departure from the development standards, I am not satisfied that the draft VPA provides sufficient justification to vary those standards, particularly building height. For the purpose of assessing the provisions of clause 4.6, I place little weight on any bonus provision that may be applied through a Planning Agreement. Whilst I accept that the development, through the acceptance of the VPA, would provide public benefits in terms of affordable housing and possibly open space should that be the final decision of the council, that benefit does not distinguish the case from any other development within the Bondi Junction CBD that also proffered a contribution towards the benefits envisaged under the VPA Policy. This ground is not particular to the circumstances of this proposed development on this site. Nor is the increased density in a highly accessible location delivering the subregional planning strategy a distinguishing ground that justifies the departure. Similarly, it would be expected that development would achieve a high quality design and respond to site constraints. There are no significant constraints that would in the circumstances of the case justify the non-compliance with the development standards.
For these reasons, I do not consider the written objection has provided sufficient environmental planning grounds to justify departure from the development standards.
Accordingly, I am not satisfied that the applicant's written request has adequately addressed the matters required to be demonstrated by subclause 4.6 (3) of the LEP.
Clause 4.6(4)(a)(ii) requires satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.
It is common ground that the development would be consistent with the objectives of the B4 Zone. I agree.
In relation to the objectives of the height of buildings development standard, the first objective is to establish limits on the overall height of development to preserve (Emphasis added) the environmental amenity of neighbouring properties. The EP&AAct and the LEP do not include a definition of "preserve" so I look to the ordinary meaning of the word and make reference to the Macquarie Dictionary that defines it as "to keep safe from harm or injury; save", "to keep up; maintain".
Having regard to the evidence, I am not satisfied that the additional building height will preserve the environmental amenity of those neighbouring properties that would lose solar access as a result of the additional building height. It is clear that the impacts of that increased height have negative impacts on the amount of solar access enjoyed by a number of properties. A significant number of those properties enjoy minimal sunlight as a result of their location and the impact of adjacent development. When such properties enjoy only minimal sunlight or achieve the 2hours minimum recognised under the RFDC for dense urban areas, the loss of even 15 minutes of solar access is significant and would not preserve the environmental amenity of those properties.
The LEP establishes height limits that have been found acceptable and unless a development can demonstrate the additional building height will not reduce the amenity to properties beyond that which would be impacted by a complying development then in this case, the objective is not met. The additional two residential floors do not increase development capacity within the Bondi Junction Centre to accommodate future retail and commercial floor space growth and accordingly that objective is not met. The third objective is not relevant to the application and I am satisfied the fourth would be met from a character and streetscape perspective.
In view of my findings the application fails to justify contravention of the building height development standard and consent must be refused. In relation to the development standard for FSR my findings are the same as the scale of the development, through the additional two storeys does preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality.
If I am wrong in the conclusion that I have reached on the jurisdictional test arising under s4.6 of the LEP, I should proceed to a merit assessment so that, if there were to be a successful appeal on my jurisdictional assessment, the parties could consider the outcome of that merit assessment to assist in ensuring that there could be a just, quick and cheap resolution of the matters as might arise on the remitter so as to facilitate achievement of the objectives of s 56 of the Civil Procedure Act 2005.
On the merits of the application, I find that the development is not appropriate due to the adverse impacts it has on adjoining properties in terms of solar impacts and as explained in [79]. In addition, the impacts of the additional two storeys on the views enjoyed from Units 103 and 106 is also unacceptable. This is because the complying development has already had significant impacts on views enjoyed from the primary living areas of those units and whilst the views enjoyed from that property are panoramic, the view lost, is to an iconic view, as agreed by the experts, towards Manly. Having regard to the principles in Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140, I also note that the impact is from the non-compliant element of the building height and accordingly, that impact is unacceptable.
For these reasons the proposal would not merit consent.
The Orders of the Court are: 1. The appeal is dismissed; 2. Development Application DA628/2014 for the construction of an additional two residential storeys containing a total of 10 apartments to an approved mixed use development at Nos 253-255 Oxford Street, Bondi Junction is refused consent; 3. The exhibits, other than exhibits A, B and 1, are returned.

Sue Morris Commissioner of the Court

Amendments 11 August 2015 - Minor typographical change 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: 11 August 2015

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