MHN Design Union Pty Limited v Waverley Council

Land and Environment Court (NSW)|2022-05-25

Judgment

COMMISSIONER: This Class 1 Appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Waverley Council (the Respondent) of Development Application No 305/2021 seeking consent for alterations and additions to an existing building, including the demolition of the rear section of the outbuilding and construction of a new five storey shop top housing development to the rear comprising a basement level, new ground floor commercial premises and eight residential units above at 31-33 Hall Street, Bondi Beach (the site).
At the commencement of the hearing, the Applicant sought to amend the development application by relying on amendments contained in architectural plans marked Exhibit W. The amendments may be summarised to include:

Revised Gross floor area calculation on drawing DA 9000.
Storage calculations on drawing DA 9201.
Revised residential bin storage on drawing DA 9200.
New drawing sheet showing fence details to the western boundary on drawing DA9202.
Revised Construction Methodology.
Revised Ground floor plan showing deletion of landscape and reconfiguration of entry court, and relocation of entry gate at Hall Street frontage on drawing DA 2001.

The Respondent agreed to the Applicant amending the development application under cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), and also agreed that the amendments were minor in nature.
Accordingly, the Court directed that the amended application be lodged on the NSW Planning Portal, and that evidence of the same be provided to the Court, which was done on 27 May 2022.
While certain contentions were agreed by the Respondent to be resolved by the amended application, in essence, five issues remain in contention that may be summarised as follows:

The site and its context

The site itself is legally described as Lot 16 in DP 12544, with a frontage to Hall Street of 15.79m, and a total area of 583m2.
Hall Street is generally flat in the vicinity of the site, rising to the west to provide elevated views to Bondi Beach which lies to the east.
The site is currently occupied by a commercial building in which services are offered by Australia Post and, on the level above, is a co-working space.
A mix of ground floor retail and other commercial premises are adjacent, and within the vicinity of the site, comprising what is known as the Hall Street Local Village Centre.
The site is identified as an item of heritage significance for its 1930's Art Deco Egyptian style that reflects the design influence of John Smith Murdoch, who served as Commonwealth Government Architect.
As such, the provisions of cl 5.10 of Waverley Local Environmental Plan (WLEP) with respect to heritage conservation apply.
The site is located within the B4 Mixed Use zone, according to the WLEP, in which shop top housing is permitted with consent, where consistent with the objectives for development in the zone, 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.
The site also adjoins land to the rear of the site that is located in the R3 Medium Residential zone in which a height standard of 12.5m applies.
A development is proposed to the adjoining site at 35-37 Hall Street, undertaken by the same architect, and depicted in a number of exhibits tendered in evidence, most relevantly in the architectural plans relating to that proposal (Exhibit X), and a letter notifying the proponent that assessment of the development application has been deferred (Exhibit 2, Tab 21).
It is commonly held that the proposal for 35-37 Hall Street is the subject of a development application that has been lodged but is yet to be determined. Accordingly, I attribute little weight to the proposal beyond it being a representation of a reasonable speculation on the potential bulk, form and scale of a development on an adjoining site.

The onsite view and public submissions

The proceedings commenced with an onsite view, during which time the Court heard an oral submission from a resident of a nearby property. The particular concern relates to the character of the local area, the probability that consent for a proposal in excess of the allowable controls would establish an undesirable precedent, and the density of the proposed development and the contribution it is likely to make to traffic congestion in the area.
During the onsite view, the Court was taken to the subject site, and circumnavigated the block on foot via Gould Street, Roscoe Street and O'Brien Street, and was also asked to observe the pattern of development and built form evident on Hall Street.
The Court was also taken to the rear of No 85 Roscoe Street which adjoins the subject site to the rear. Accompanied by the legal representatives and planning experts only, the Court also entered apartment 14 at that address.
The Court's attention was particularly drawn to the site the subject of recent consent granted by the Court at 42-25 Hall Street, a recently completed development at 10-14 Hall Street, and current construction works at the intersection of Hall Street and Jacques Avenue, and at 80-82 Hall Street.
The development application was initially notified by the Respondent from 20 August 2021 to 10 September 2021, and again between 8 April 2022 to 22 April 2022 following amendment of the development application, in response to which a number of public submissions were received. These are contained in the Respondent's bundle (Tabs 19 and 20), marked Exhibit 2. The concerns may be summarised as follows:

Damage or removal of the heritage item, and impact on heritage values of the area
Potential damage to adjacent buildings caused by excavation
Overshadowing and overlooking
Additional traffic congestion and competition for on street car parking
View loss

The height standard is exceeded

The height of the proposed development exceeds the height standard of 13m applicable to the site pursuant to cl 4.3 of the WLEP, and the Applicant relies on a written request, prepared by Mr Kosnetter dated 28 March 2022, in accordance with cl 4.6 of the WLEP (the written request) (Exhibit C).
The Court, exercising the functions and discretions of the consent authority on appeal, has the power to grant consent despite the contravention of development standards subject to two preconditions being satisfied under the terms of cl 4.6(4) of the WLEP.
The means by which satisfaction is to be reached on those two preconditions is succinctly put in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130, at [22]-[24]: "22 The permissive power in cl 4.6(2) to grant consent to development that contravenes a development standard is subject to conditions that must be met before the power can be exercised. First, cl 4.6(3) requires the consent authority to consider a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating both of the matters in cl 4.6(3)(a) and (b), being: "(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." 23 Secondly, cl 4.6(4) requires the consent authority to be satisfied of both of the matters in cl 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" 24 Only if the consent authority meets these requirements in cl 4.6(3) and (4) will the power in cl 4.6(2) to grant consent to development that contravenes the development standard be enlivened."
In considering the written request, the Court was assisted by experts in town planning, Ms Sandra Robinson for the Respondent, and Mr Leo Kosnetter for the Applicant. Mr Tim Williams also conferred in the conclave as an expert in urban design for the Respondent, in the preparation of the joint expert on planning and urban design report at Exhibit 3.
In respect of the contentions dealing with heritage conservation, that are not wholly unrelated to the consideration of the height exceedance, the Court was assisted by experts in built heritage, Mr James Philips for the Applicant, and Mr Colin Brady for the Respondent. Mr Philips prepared the Heritage Impact Statement in support of the development application (Exhibit H), and the experts conferred in the preparation of a joint expert report marked Exhibit 4.
The height of the proposed shop top housing development to the rear is 16.43m, resulting in an exceedance of 3.43m above the height standard.
The written request justifies the contravention of the height standard on the basis that the development proffers an alternative means of achieving the objectives of the height standard and so strict compliance with the standard is unnecessary and unreasonable.
The objectives of cl 4.3 of the WLEP that are relevant to the circumstances of this case are: (a) to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties and public spaces and, if appropriate, the sharing of views, … (d) to ensure that buildings are compatible with the height, bulk and scale of the desired future character of the locality and positively complement and contribute to the physical definition of the street network and public space.
In respect of objective (a), the written request asserts that the environmental amenity of adjoining properties, public spaces and sharing of views is preserved because: 1. Solar access to adjoining properties to the east is improved by the proposal when compared to a proposal that extends further south over the heritage building but which demonstrates strict compliance with the controls. 2. Visual privacy to the residential flat building at the rear of the site, No 85 Roscoe Street, is preserved by providing varying degrees of separation between the (broadly) north facing balconies of the proposal and the (broadly) south facing rooms of the property to the rear. Those rooms directly facing the site are enclosed balconies now used for storage, studies and clothes drying, not living areas. Additionally, solid balustrades and integrated planter beds minimise sightlines northwards from the proposal. The level exceeding the height standard is setback 10m from the rear boundary and is elevated so that a sightline to No 85 Roscoe Street is not readily achieved. 3. Future development potential of adjoining sites to the east and west is preserved given the (broadly) northerly aspect to the rear of the sites, and views to the Hall Street Town Centre over the lower form of the existing heritage building. 4. The amenity of public spaces is preserved by the locating of the new built form to the rear of the site where it is not visible from Hall Street other than from distant locations where it is seen in the context of larger and taller buildings. 5. The preservation of shared views is not relevant in the circumstances of this case, given the flat topography of the site, and taller buildings to the east which terminate views to the east from surrounding properties.
In respect of objective (d), the written request asserts compatibility with the height, bulk and scale and the desired future character of the area, because: 1. The existing heritage building fronting Hall Street is consistent with the existing and desired future character of the predominantly three-storey street wall height. 2. The proposed envelope is generally in accordance with the typical built form for four storey centres, applicable to the Hall Street Town Centre, Annexure E3-3 of the Waverley Development Control Plan 2013 (WDCP) (see [33]), and evident in existing developments such as the podium at 61-69 Hall Street (the 'Adina development'), and the recently approved development at 43-45 Hall Street.
Similarly, the retention of the existing heritage building positively complements and contributes to the physical definition of the street network and public space, as it has since first constructed in 1938.
In the joint report, Ms Robinson considers the scale of the Adina development anomalous and too remote from the immediate visual catchment of the subject site to be relied upon, and the characteristics of the development at 43-45 Hall Street sufficiently differentiated in site area, degree of heritage constraint and available developable area, setbacks and residential amenity proposed in that development from that of the subject site.
Instead, Ms Robinson considers the proposed development unresponsive to its context as it will be taller than all of the existing and proposed adjoining buildings in the vicinity, including that proposed for 35-37 Hall Street, and lacks the 'courtyard form' which I understand to be a reference to the internal courtyard depicted on the diagram B at Annexure E3-3 of the WDCP, re-produced below:
It is relevant to record at this point that the experts considered the 3-dimensional geometry of the development proposed at the rear in depth. The interface between development at the rear and the existing heritage item on the site is depicted in certain illustrated figures within the joint expert report, taken from 'screenshots' of the computer model, (identified as Kosnetter Figure 9, Robinson Figure 5, and Kosnetter Figure 10) and on the section drawing DA 3100.
To assist the Court and the experts in gaining a better understanding of the geometry of the proposal at this particular junction, the Applicant proposed to display a 'fly around' of the 3-dimensional digital model of the proposal, so as to display any view of the proposal 'in the round' requested by the experts.
The Court accepted the Applicant's proposal and directed that the Applicant's planning expert, Mr Kosnetter, control the 'fly around'. In general terms, views were displayed on the Court's AVL screens to assist the experts to understand the particular interface of the existing heritage form with the new built form proposed.
The 'fly around' revealed that the architectural section depicted on drawing DA 3100 is unique to the cantilever on the west of the site. The Court directed the Applicant to prepare a similar long section through the eastern cantilever to better understand the relationship between the proposed development at the rear of the site and the existing building.
The Applicant tendered the long section, identified as drawing DA 3102, and marked Exhibit Z at the commencement of the second day of the hearing.
Next, the written request sets out environmental planning grounds to justify the contravention of the height standard, that may be summarised as follows: 1. The aspect or element of the proposal that exceeds the height standards provides an alternative configuration of the building envelope on the site, within the permitted GFA, in order to retain the significance of the heritage item. 2. The exceedance is caused by an element designed to respond to the heritage significance of the building by being recessive in its setback, and so is indiscernible and unoffensive from the street. 3. The materials, finishes and setback of the uppermost level are respectful and responsive to the heritage significance of the heritage building, the conservation of which is facilitated by the proposal, within the terms of cl 5.10(10) of the WLEP. 4. The proposal promotes the economic use and development of the land and the sustainable management of built heritage, is orderly economic development, and promotes good design and amenity of the built environment, consistent with certain objects of the EPA Act. 5. The scale of the proposal is consistent with the typical built form for four storey centres set out in the WDCP and preserves the three storey street wall height to Hall Street, while being consistent with part 4, part 5 storey buildings to the west of the site such as 43-45 Hall Street.
Ms Robinson's opinion is that the grounds set out above are not sufficient to justify the contravention because: 1. In contrast to the assertion at [39(1)], Ms Robinson believes the Applicant has not successfully arranged the permitted GFA in a way that adequately responds to the individual opportunities and constraints of the site which, when understood correctly, preclude achieving the maximum GFA by reason of the modest site area remaining once the footprint of the heritage building is factored, which Ms Robinson notes in her oral evidence is only marginally larger than the minimum lot size permitted in the Waverley local government area. 2. The poor residential amenity of the proposal, and the impacts imposed on other properties from the development are not consistent, but inconsistent, with the objects of the EPA Act said to have been achieved. 3. The consistency said to have been achieved with the recent consent at 43-45 Hall Street fails to acknowledge key differences between the sites summarised at [32], and depicted in part in Figure 1 and 2 of the joint report, re-produced below:
I am satisfied that the written request has adequately addressed the matters required to be demonstrated by subcl 4.6(3)(a) of the WLEP for the reasons that follow: 1. Firstly, I accept that the environmental amenity of neighbouring properties is preserved, notwithstanding the exceedance. In arriving at this conclusion, I consider preservation of amenity to be a question posed in general and not limited to one aspect of amenity such as loss of solar access, as it was put by Clay AC in STM123 No. 7 Pty Ltd v Waverley Council [2020] NSWLEC 1495 at (75). 2. I have considered the siting of the residential flat building at No 85 Roscoe Street, which is setback 1300mm from the boundary it shares with the subject site. I have also considered the varied use of the rooms that look directly on to the site, including the images taken by Ms Robinson (Exhibit 10). 3. Due to the location of north in relation to the site and No 85 Roscoe Street, there is no loss of solar amenity, and due to the existing overlooking of No 85 Roscoe Street from the upper level terrace visible in the image of Apartment 15 (Exhibit 10), and observed at the onsite view, I consider the visual privacy to be preserved, given the additional measures taken to moderate visual privacy notwithstanding the closer proximity resulting from the proposal, and the enhanced landscape buffer proposed at the rear of the subject site, inclusive of the mature frangipani, identified as Tree 4, that is to be retained. 4. While the rear setback of the proposed, shown on drawings DA 3100 (Exhibit A) does not, at the ground, first and uppermost floor of the proposal, conform to the 6m setback required by design criteria 3F-1 of the Apartment Design Guide, it does conform at Level 2 of the proposal, and exceeds the required setback at Level 3 of the proposal, by a dimension of 2m. 5. The stepped setback also conforms to, or exceeds, the diagram at Annexure E3-3, re-produced below, in a number of relevant areas. 1. I note the ground floor setback of 4000mm exceeds the minimum of 3000mm in the diagram above; the first floor terraces adopt the privacy screen also depicted in the diagram above, and the upper levels step back at a broadly 45 degree plane. While the uppermost level, the subject of the exceedance, encroaches within this 45 degree plane, it achieves a setback of 9m, with a solid planter upstand to moderate the downward sightline to the rear neighbour at No 85 Roscoe Street. 2. I also note here that the setback dimension of 9m shown in the diagram in [41(5)] for Level 2 of the proposal may be varied on small sites, as is the subject site, and while design guidance at 3F-1 of the Apartment Design Guide (ADG) encourages increased separation to adjoining sites where at a zone interface, as is the case here, the height controls between the two zones varies by only 500mm, and the FSR of No 85 Roscoe Street would appear to exceed the allowable FSR control of 0.9:1 in the R3 zone. 3. I also agree with the experts who concur that Units 1 and 2 of the proposal, and Units 15 and 16 of No 85 Roscoe Street will experience overlooking. However, as those rooms in Units 15 and 16 are not primary living areas, or bedrooms in which privacy may otherwise be reasonably sought, I regard the overlooking to be mutual and manageable, and to a degree not unexpected between B4 Mixed Use and R3 Medium density residential zones. As noted earlier I also observe a degree of overlooking is a reality today. 4. Secondly, on the basis of the views from the sun diagrams contained in Exhibit A, I accept that adjoining properties to the east obtain a modest benefit by the departure from the maximum 18m setback preferred in the diagram at [41(5)]. The increased setback of 23m from the front provides solar access to existing windows to the rear of the three storey built form fronting Hall Street from 2pm onwards in midwinter. 5. Thirdly, I note reference in the written request to the desired future character of the Hall Street Town Centre, which is described in the at Section E3.1.7 of the WDCP in the following terms: "Desired Future Character Objectives (a) To maintain Hall Street and the southern end of Glenayr Avenue as a separate and discrete precinct within the wider Bondi Beach town centre, with the role and character of providing local shops, services and residential accommodation for the local community. (b) To effectively manage the retail/commercial and residential interface in the centre. (c) To maintain and enhance accessibility to public open space." 1. I have considered the desired future character objectives for the local area, and the diagram at Annexure E3-3 of the WDCP. On the basis of the streetscape view depicted on the cover page Drawing DA 0000, the Hall Street elevation on Drawing DA 3002 (Exhibit A), and the stepped rear setback depicted on the section drawing DA 3100, I accept the reasons advanced in the written request as to the compatibility with the height, bulk and scale and the desired future character of the area.
I am also satisfied that there are sufficient environmental planning grounds to justify the contravention of the height standard in the circumstances of this proposal, and on this site, pursuant to cl 4.6(3)(b) of the WLEP for the following reasons: 1. Firstly, I accept that the existing heritage building, that occupies around 50% of the site footprint, is one element of constraint to development on a modestly sized site that favours development to the rear. This is particularly so if the parapet of the existing building, identified as a feature of the item in the Heritage Impact Statement (Exhibit H, p 30) is to be read free of obstruction when viewed in the context of the streetscape, where the primary contribution is made by the heritage item, according to the Statement of Significance contained in the NSW State Heritage Inventory Database. 2. Secondly, for reasons similar to those set out by O'Neill C in Hall Street A Pty Ltd v Waverley Council [2020] NSWLEC 1235, at (35), I agree that an alternative configuration of the GFA permitted on the site that is designed to retain and preserve the identified significance of a heritage item is an environmental planning ground that promotes the sustainable management of built and cultural heritage, consistent with s 1.3(f) of the EPA Act. Relatedly, I note the alternative configuration of the GFA is achieved within the limits of the FSR applicable to the site, notwithstanding the constraint on development caused by the heritage item. 3. Such an approach accords with Mr Brady's oral evidence that sound heritage advice would also recommend development to the rear of the site, reflected in guidance in the WDCP dealing with character and streetscape, siting and scale and proportion as follows:

Section B9.6.2, objective (a), "Additions should be located to the rear to minimise the impact from the street".
Section B9.7.2 objective (a), "Extensions should be kept to the rear of the site to minimise the impact upon the streetscape", and
Section B9.8 objective (a) "To ensure that alterations and additions to heritage item and contributory building are consistent with the scale and proportion of the item and/or streetscape". 1. While Mr Brady and Ms Robinson consider the cantilever of built form over the rear of the heritage item to be unsympathetic to the significance of the heritage building, I find the alignment of the southern extent of the cantilever with the hipped section of roof over the existing heritage building to be considered and deliberate, and to overhang the lower, skillion roof form that is clearly subservient to the primary roof form over the heritage building. 2. I also note Drawing A3102, re-produced in excerpt below, illustrates that the cantilever over the two-storey form to the rear is largely confined to the north-west corner. The arrangement is not uniform across the rear of the heritage item, but instead suggests a courtyard form similar to that depicted at [33]: 1. To the extent that Ms Robinson believes the cantilever over the heritage building causes enclosure, resulting in poor internal amenity for the residents of Unit 1, 3 and 4, I note the cantilever over those Units is not a direct consequence of the height exceedance, but of levels below, and so is more appropriately an aspect to be considered in the event the opinions of satisfaction at [23] are reached, and the power to grant consent is enlivened.

The experts agree, as I do, that the proposed development is consistent with the objectives of the B4 zone, and I am satisfied that the objectives of the height standard are also satisfied for the reasons set out at [41].
Furthermore, I am satisfied that the proposed development is in the public interest for the reasons stated above. In forming this opinion of satisfaction, I accept the new built form is sited so that it is not visible from the vast majority of public space in the Hall Street Town Centre, other than the fleeting view afforded by the external entry passage located to the west of the existing heritage building.
While I note here that Mr Brady considers the cantilever unacceptable when viewed from this location because it detracts from the articulation and style of the existing building, and because of what he regards as "a random assembly of materials and irregular sized openings within an overhanging two storey mass", I do not understand that the environmental amenity of the public space of Hall Street to be compromised by the view, and I accept the Applicant's argument that the provisions of the WDCP at [42(3)] should be a focal point in my consideration of public interest.
Clause 4.6(4)(b) of the WLEP requires that the concurrence of the Planning Secretary be obtained for development consent to be granted to development that contravenes a development standard.
That said, s 39(6) of the Land and Environment Court Act 1979 (LEC Act) gives the Court the power to grant development consent without obtaining the concurrence of the Secretary, although consideration ought be given to the matters in cl 4.6(5) of the WLEP when exercising the power to grant development consent for development that contravenes a development standard.
I have considered whether the contravention of the FSR standard raises any matter of significance for State or regional environmental planning, and whether there is a public benefit of maintaining the development standard. I conclude that no matter of significance arises, and I consider there to be a public benefit served by upholding the written request for the reasons set out above.

Merit considerations

In addition to those matters the subject of the height exceedance, expert planning and urban design evidence was adduced on three areas of the proposed development: 1. The constrained access from Hall Street. 2. The degree of amenity afforded by the entry; and 3. Whether the proposal exhibits design excellence.

The constrained access from Hall Street

As the existing building on the site does not extend to the boundary to the west, a side passage provides access to the rear of the site, with a gate opening on to the Hall Street footpath. The Applicant proposes to use this side passage as the primary entry to the development proposed at the rear.
It is relevant to record here that an existing masonry wall dividing the site from its western neighbour at 35-37 Hall Street is to be demolished, and a replacement wall is proposed.
Ms Robinson characterises the passage to be 27m in length, and around 1.3m at its widest point, with narrower 'pinch points' further limiting its function as a primary building entry. The practical effect of such a narrow entry means passing is difficult, especially for a person in a wheelchair, or with a pram, or taking receipt of a bulky delivery.
Furthermore, it cannot be assumed that the proposal for 35-37 Hall Street, which depicts a mirrored entry passage to that of the development the subject of the development application, will proceed.
Accordingly, the proposal is inconsistent with the objectives at Section C3.8 of the WDCP that, in summary, seeks high quality, accessible and safe pedestrian access, a desirable residential identity, a positive contribution to the streetscape and a strong connection to the street.
Mr Kosnetter believes the side passage mimics the existing pattern evident in older shop top development in the vicinity of the site, consistent with Section C3.8, Control (a), is the result of a physical constraint in the form of the heritage item, and acts as an entry for a development limited to only eight units that are themselves a mix of studio and one-bedroom units. As such, it is reasonable to expect that residents of development of such modest scale would 'give way' to fellow residents when using the passage.

The degree of amenity afforded by the entry

The side passage connects the Hall Street frontage to an entry court that is either 'sinister and oppressive', according to Mr Williams, or an appealing double-height, semi-enclosed courtyard, according to Mr Kosnetter.
Ms Robinson argues the entry court is largely enclosed, with little sunlight, requiring artificial lighting that will adversely impact the amenity of Units 1, 3 and 4 by way of the windows that overlook the entry court.
Those units rely on these windows to achieve cross ventilation, but due to a combination of noise likely to be generated at the building entry, and from existing mechanical plant that will be reflected within the enclosed entry, and light spill from artificial lighting, these windows are likely to remain shut.
Furthermore, these windows are 'primary windows', so defined in the glossary of the ADG: "Primary windows windows to habitable rooms located on the external wall of a buildings; primary windows may be supplemented by windows in courtyards, skylights, notches and along galleries"
Objective 4F-1 of the ADG provides that: "Primary living room or bedroom windows should not open directly onto common circulation spaces, whether open or enclosed. Visual and acoustic privacy from common circulation spaces to any other rooms should be carefully controlled."
Similarly, Objective 4H-1 discourages windows being exposed to noise sources: "Window and door openings are generally orientated away from noise sources. … Noisy areas within buildings including building entries and corridors should be located next to or above each other and quieter areas next to or above quieter areas."
Whether or not the site could be accessed by an alternative path, including by entry via the existing retail space fronting, is not the question before the Court.
Instead, entry is proposed via the side passage, which connects the Hall Street frontage to the covered entry court.
I accept Mr Kosnetter's evidence that utilising the side passage has the effect of preserving the fabric of the heritage item in a manner consistent with access arrangements to upper level residential accommodation in the Hall Street Town Centre. The width of the passage, even at its 'pinch points', achieves or exceeds the width required of a path of travel for development comprising eight units.
That said, I also accept that the length and width of the passage may not achieve the dimensions conventionally desired for new residential apartment development. However, in the circumstances of this case, the passage is an external space, clearly shaped by the void remaining between the heritage fabric, and the western boundary of the site. It will be read so.
Any deficiencies that may be perceived by users of the passage, are also likely to be offset by the legibility of the existing built form around which the user is asked to manoeuvre in order to access the entry court.
The entry court is a covered external space, forming a buffer between the heritage item at ground and first floor, and open to the elements.
It is a double height space, and windows do open directly to this entry court, contrary to the guidance at Objective 4F-1 of the ADG, and likely exposing the apartments within to noise generated in the entry court, contrary to the guidance at Objective 4H-1 of the ADG.
However, I note the windows are positioned a level above ground level circulation, and so visual and acoustic conflict is somewhat removed.
I also note the design criteria at Objective 4F-1 of the ADG seeks to limit the number of apartments sharing a circulation core to a maximum of eight units. A measure of the modest scale of this development is that eight units comprise the entire development. The entry court is secured behind a gate fronting Hall Street, and so access to this area of the site is limited to residents and their guests. On this basis, I accept Mr Kosnetter's opinion that the pedestrian traffic is likely to also be modest, and so generate a level of noise within this space that is likely to be negligible and momentary.
While the windows opening to the entry court ensure cross ventilation to those units, they are overshadowed by the cantilevered form of the levels above. I accept Ms Robinson's concern that artificial lighting in the entry court has the potential to impose an annoyance on the amenity of Units 1, 3 and 4. However, in my view this can be addressed by the imposing a condition of consent prohibiting lighting fixed to the soffit over the entry court, in favour of wall mounted fittings below the level of window sills at Level 1.
So understood, I consider the side passage and entry court to achieve a high quality, accessible and safe pedestrian access, to provide a desirable residential identity, and make a positive contribution to the streetscape, in part through the retention of the heritage item fronting Hall Street that retains its strong connection to the street.

Effect on the heritage item

In essence, the heritage experts agree that the new built form proposed should be located to the rear of the site to minimise the visual impact of the proposal on the presentation from Hall Street.
As it is put by Mr Brady in his oral evidence; it would be conventional for heritage expertise to favour development to the rear.
The primary difference between the experts is that Mr Brady considers it preferable for the proposal to be setback at least 25m from the Hall Street frontage with a physical separation from the existing building, and not to cantilever over the rear of the existing building as shown on the key architectural drawing, DA 3100, re-produced in excerpt below:
According to Mr Brady, the cantilever is a result of the Applicant seeking to increase the setback to the rear of the site, which has the effect of pushing built form at the upper levels toward Hall Street. The consequence of this is that a significant visual element is viewed from Hall Street via the sightline afforded by the side passage.
Mr Philips regards the heritage significance to be, firstly, defined by the reference to the item in Sch 5 of the WLEP, supported by the statement of significance, and secondly by more detailed consideration of the item when viewed in context.
In respect of this first consideration, the heritage significance is primarily vested in the Hall Street façade and interior, where the Art Deco Egyptian style is best represented, and not in the side and rear elevations where the features of heritage significance are less evident.
In respect of the second consideration, a proper reading of Article 8 of the ICOMOS Burra Charter suggests the setting of the item is not defined by each and every adjacent building, which vary in era and architectural form and style, but primarily by the adjoining buildings on Hall Street.
That said, Mr Philips accepts that the parapet feature evident on Hall Street returns to some extent on the east and west elevation.
Section B9 of the WDCP deals with heritage, with the following general objectives: "(a) To provide a framework for heritage and conservation planning in Waverley. (b) To provide detailed guidelines to manage change and ensure the preservation of history and heritage in Waverley. (c) To ensure that appropriate heritage documentation is provided to inform the assessment of development. (d) To ensure that Aboriginal heritage and archaeology are taken into consideration, and respectfully incorporated where appropriate. (e) To ensure that development enhances the character and significance of any heritage item, conservation area, artefact or place. (f) To ensure development reflects and promotes an understanding and appreciation of heritage significance. (g) To promote sustainable development through the retention and repurposing of existing building stock."
Section B9.6 of the WDCP provides objectives and controls in respect of Character and Streetscape.
Section B9.8 of the WDCP provides objectives and controls in respect of Scale and Proportion.
In summary, the provisions of Section B9 seek infill development to be located to the rear, respond sympathetically, and to not visually dominate where seen in context with a heritage item.
Clearly, the Hall Street façade and interior, and parapet return, are retained in this proposal and, in my view, the sightline to the development proposed at the rear afforded down the side passage is so narrow as to be fleeting when viewed from Hall Street, and is sufficiently set back from the Hall Street frontage to achieve the objectives and controls of the WDCP, as illustrated in the figure identified as Kosnetter Figure 9, re-produced below.
Having considered the effect of the proposed development on the heritage significance of the item, and of heritage items in the vicinity of the site, I conclude the proposal is acceptable, pursuant to cl 5.10 of the WLEP.
For completeness, for those reasons set out above, I also consider the heritage issues and streetscape constraints found within the provisions at cl 6.9 of the WLEP to likewise be addressed.

Design excellence

The site is identified on the Key Sites Map at cl 6.9(2) of the WLEP, and so the provisions of cl 6.9 of the WLEP apply with the objective to deliver the highest standard of sustainable architectural and urban design.
Subclause 6.9(3) provides that development consent must not be granted unless the consent authority, or the Court on appeal, considers that the development exhibits design excellence by having regard to the aspects and elements set out at subcl (4), relevantly: (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the development will improve the quality and amenity of the public domain, … (d) how the development addresses the following matters - (i) the suitability of the land for development, … (iii) heritage issues and streetscape constraints, (iv) the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) bulk, massing and modulation of buildings, … (xi) the quality and integration of landscape design.
The parties agree, as do I, that certain elements of design excellence are achieved, and so are not in dispute.
With respect to the standard of architectural design, materials and detailing appropriate to the building type and location (subcl 4(a)), for the reasons set out at [67]-[72] of this judgment, I find the side passage and entry court well considered and appropriate for the scale of the development proposed.
Furthermore, as stated at [42(4)], I find the cantilever of the upper levels of the development proposed to the rear to be considered and deliberate.
On the basis of the external finishes depicted at drawing DA 6000 (Exhibit A), and Side Fence details at drawing DA 9202 (Exhibit W), I also regard the materials and detailing to be resilient and free of applied finishes, which I consider appropriate to residential development in a constrained urban, maritime environment where maintenance of applied finishes can be a burden.
As to whether the form and external appearance of the development will improve the quality and amenity of the public domain (subcl 4(b)), I consider that aspect of the proposal most evident from the public domain, being the secure entry to the side passage amended by drawing DA 9202 (Exhibit W), serves to improve the quality and amenity of this portion of Hall Street.
With respect to those matters at subcl 4(d), I note the following: 1. Given the retention of the heritage item, which occupies around 50% of the site, and the acceptability of the means of access and entry to the proposal that achieves the objectives of development in the B4 zone, the land is considered suitable (subcl 4(d)(i)). 2. I have considered how the relationship of the proposed development addresses the separation, setbacks, and amenity of other development and relatedly, how the bulk, massing and modulation of the proposal is addressed at [41]. 3. The quality and integration of landscape design is addressed by the deep soil and landscape planting proposed in the 4m setback to the rear of the site, the integration of planters at Level 2 and Level 4 of the proposal, and the conclusion of the arboricultural report (Exhibit D) supporting the retention of a mature frangipani tree, Tree 4, in the rear setback. When considered together, I conclude that the landscaping proposed is designed to provide a degree of visual separation and privacy from surrounding development and is well-located on the northern boundary where solar access is assured.
Accordingly, having regard to those matters at subcl (4) of the WLEP, and identical provisions at Section B12 of the WDCP which also deal with design excellence, I am satisfied that the development exhibits design excellence, pursuant to cl 6.9(3) of the WLEP.

State environmental planning policy No 65 - Design quality of residential apartment development (SEPP65)

As the proposal is for shop top housing comprising residential apartment development, the provisions of SEPP 65 apply.
Clause 28 of SEPP 65 requires a consent authority to take into consideration, in addition to any other matters that are required to be, or may be, taken into consideration, the following: (a) the advice (if any) obtained from the design review panel, and (b) the design quality of the development when evaluated in accordance with the design quality principles, and (c) the Apartment Design Guide.
Where an application relates to residential apartment development, cl 50(1A) of the EPA Regulation requires a development application to be accompanied by a statement by a qualified designer, defined at cl 3 of the EPA Regulation as a person registered as an architect in accordance with the Architects Act 2003.
The statement must conform to the provisions of cl 50(1AB) of the EPA Regulation, which include attestations in relation to cl 28(2)(b) and (c) of SEPP 65. I am satisfied that the statement provided by Mr Brian Meyerson (Reg No.4907) is in a complying form and adequately demonstrates that the development is largely consistent with the design quality principles, objectives and design criteria of the ADG, where not otherwise addressed in this judgment.
I note here that Ms Robinson identifies Unit 2 to be a single aspect apartment of greater than 8m in depth, exceeding the guidance provided at Objective 4D-2 of the ADG, a fact acknowledged in the design statement (Exhibit B, p18). I consider the departure from the provision acceptable in this circumstance because the effective opening size of the generous sliding glazed doors to the north facing terrace is greater than 10% of the total floor area of Unit 2, permitting a greater quantum of daylight and air than the minimum required by Objective 4D-1.
On the basis of the design statement prepared by Mr Meyerson, I am also of the opinion that the proposal is consistent with those standards at cl 30 that cannot be used as grounds to refuse development consent, other than for car parking which is not proposed, and I consider that adequate regard has been had to the design quality principles and to the objectives specified in the ADG, in accordance with cl 30(2).

Contamination

Consistent with the terms of cl 7 of State Environmental Planning Policy No 55 - Remediation of Land, the requirements of which were transferred to State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazard SEPP) on 1 March 2022, I have given consideration to the potential contamination of the site.
The Applicant relies upon a Preliminary Site Investigation report (PSI Report), prepared by EBG Environmental Geoscience dated 28 March 2022 (Exhibit N), and acknowledges the conclusions support further investigation that is, as yet, incomplete. Furthermore, evidence tabulated at Section 4.2 of the PSI Report identifies potential contamination sources from historical activities in the vicinity of the site.
I accept the Respondent's submission that, absent the results of further investigation, the Court is unable to form a view on whether the land is contaminated and if the land is contaminated, whether the land is suitable in its contaminated state, or will be suitable, after remediation.
Relatedly, the Court is also unable to form a view on the quality of the fill or the soil to be excavated for the purposes of the basement proposed, which is a requirement of cl 6.2(3)(c) of the WLEP.
I consider it appropriate to direct the Applicant to undertake this further investigation, and for the parties to provide agreed conditions of consent incorporating the results of the further investigation.

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

I am satisfied that the application is accompanied by a BASIX certificate (Cert No. 1175387M_02, dated 29 March 2022) prepared by BASIX Certificate Company in accordance with SEPP BASIX and the EPA Regulation.

Directions

For the reasons set out at [107], I consider it appropriate to direct parties to provide the Court with certain documents to permit the final consideration of matters in accordance with s 4.15 of the EPA Act and, if appropriate, the final form of conditions of consent.
The Court directs that: 1. Within 21 days of these orders, the Applicant is to file and serve a Detailed Site Investigation of the land concerned carried out in accordance with the contaminated land planning guidelines, and 2. Within 28 days of these orders, the parties are to provide the Court with agreed conditions of consent responsive to the preliminary findings in this decision and incorporating any recommendations resulting from the further investigation at order (1). ………………….. T Horton Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 July 2022

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Cases Cited (3)