Moskovich v Waverley Council

Land and Environment Court (NSW)|2015-08-19

Solicitors: Gadens (Applicant)

Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 10914 of 2014

Judgment

Dimitri Moskovich (applicant) has appealed, pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the refusal by Waverley Council (council) of a development application (D232/2014) for the demolition of existing structures and construction of a residential flat building (RFB) at 334 and 334A Bondi Road, Bondi (site).

Site and locality

The site consists of two adjoining allotments identified as SP521 and SP10317. It is irregular in shape with a north (rear) boundary to Edward Street of 31.74m, east (side) boundary of 32.755m, south (front) boundary of 28.88m to Bondi Road and west (side) boundary of 43.94m. The site has an overall area of 1046.7sqm with a fall from Bondi Road to Edward Street of between six to ten metres.
Each allotment is developed with a RFB with a primary frontage to Bondi Road and garages to Edward Street.
Adjoining the site to the east is a two to four storey RFB (334B Bondi Road) and to the west is a three to seven storey RFB (332 Bondi Road). Development in the immediate locality is a mix of residential buildings ranging from single detached dwellings, semi-detached dwellings and RFBs from two to nine storeys.

Planning controls

The site is zoned R3 Medium Density Residential under Waverley Local Environmental Plan 2012 (LEP). The development is permissible with consent.
Under cl 4.3 and the Height Map of the LEP, the maximum height of a building is 12.5m. Under cl 4.4 and the Floor Space Ratio (FSR) Map the maximum FSR is 0.9:1. The proposal exceeds both the height and the FSR standard and the applicant has submitted written requests to vary the standards under cl 4.6 of the LEP which provides: 4.6 Exceptions to development standards (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. …..
The key dispute between the parties is whether the requirements of cl 4.6 to vary the FSR standard are satisfied, which is discussed later in this judgement.
Waverley Development Control Plan 2012 (DCP) is relevant. Part C2 applies to Multi unit and multi dwelling housing and includes objectives and controls for Site, scale and frontage (s 2.2), Height (s 2.3), Excavation (s 2.4), Setbacks (s 2.5), Length and Depth of buildings (s 2.6), Building separation (s 2.7), Building design and streetscape (s 2.8), Landscaping (s 2.12), Communal open space (s 2.13), Private open space (s 2.14), Solar access and overshadowing (s 2.15), Views and view sharing (s 2.16), Visual privacy and security (s 2.17) and Apartment size and layout (s 2.18).
Section 2.2 of Part C2 of the DCP includes Control (b) which provides: (b) Where it is proposed to exceed the maximum FSR permitted the onus is upon the applicant to justify that the proposed FSR is acceptable. Matters that must be addressed in justifying the proposed FSR include, but are not limited to: (i) Compliance with Building Height development standards; (ii) Compliance with side setback controls; (iii) Visual aspect of the building bulk and scale particularly associated with floor space exceeding the standard: as viewed from the streetscape; and as viewed from the private open space and living areas of adjoining properties. (iv) Acceptability of amenity impacts on adjacent properties with regard to sunlight, visual and acoustic privacy and views; and (v) A high design quality is achieved.
Section 2.3 of Part C2 of the DCP includes similar controls (b and c) for variations to the height standard.
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) as in force prior to 19 June 2015 applies to the development as the application was lodged prior to this date. Under cl 30(2) of SEPP 65, the consent authority must take into consideration the advice of the Design Review Panel (if any), the design quality of the residential flat development when evaluated in accordance with the design quality principles, and the Residential Flat Design Code (RFDC).
The parties referred to the Planning Agreement Policy 2014 (VPA Policy), which includes requirements for development applications which propose floor space above that permitted under cl 4.4 of the LEP. The parties' discussion was limited to questions of abandonment of the FSR standard. However, neither party submitted that this was the case nor did Council contend that the application should be refused on the basis of this policy. I have therefore given little weight to the VPA Policy.

Background and proposal

The development application was lodged on 28 June 2014, advertised and notified. The application was for a six storey building with 22 units with a maximum building height of 19.26m and a maximum FSR of 2.08:1. The application was considered by the Design Review Panel on 7 July 2014, which accepted that a four storey form was appropriate to Bondi Road but raised concerns about the six storey form to Edward Street and other matters. It concluded that: The DA submission has qualities that are capable of design improvement, consistent with the positive aspects already embodied in the application. The details of the proposed architectural character, dimensions, materials and the like need to be more completely documented as part of the application.
The application was refused by council on 24 September 2014. The applicant filed an appeal against council's refusal on 5 November 2015. A conciliation conference under s34 of the Land and Environment Court Act (LEC Act) was held on 10 February 2015. The conciliation conference was subsequently terminated and the parties agreed to my disposing of the proceedings under s34(4)(b)(i) of the LEC Act and that the site view would be evidence in the proceedings.
The applicant was granted leave to rely on amended plans (Revision 11) on 10 July 2015, which were renotified. The amended plans propose the demolition of existing structures and construction of a five storey RFB with 15 apartments (nine x 2 bedroom, five x 3 bedroom, one x 4 bedroom), two levels of basement parking for 27 cars with access from Edward Street and landscaping. During the hearing, further amendments were suggested in response to the recommendations of the joint report (Exhibit J) and the evidence (Exhibit P). These changes included a reduction in the depth of the parapet facing Edward Street and the relocation of the air-conditioning units and their enclosure to the basement which would result in the lift over run being the only breach of the height control. Other changes included the deletion of the common open space and changes to the terrace of Unit 2.01, removal of the timber screens to the Bondi Road Façade, a reduction in the "gill" privacy screens to the east and west façade to reduce bulk and deletion of the eastern stair on LG.03 and Unit LG2.02 to provide increased deep soil. Council's experts also suggested further changes to the upper level facing Edward Street to reduce bulk and the four storey appearance and to the west side set back by relocating the driveway wall and stair access to increase deep soil planting. The applicant did not support these latter changes but would accept them if required by the Court. For the reasons I will discuss later, I accept that the changes should be incorporated into the final plans and my determination of the application is on this basis.

Evidence

The Court visited the site and surrounding area and heard evidence from objectors who were principally concerned about the loss of views from units at 307 Bondi Road, privacy and view impacts to 12/332 Bondi Road and privacy and visual bulk from 5/3 Edward Street.
The Court heard expert planning and urban design evidence from Mr A Betros and Ms G Morrish, for the applicant, and Ms C Brown and Mr P Smith, for the council.

Clause 4.6 - Floor space ratio

The maximum FSR permissible under cl 4.4 of the LEP is 0.9:1 (942sqm). The development proposes a FSR of 1.5:1 (1575sqm) and therefore exceeds the control by 0.6:1 (633sqm). Mr Betros provided a written request under cl 4.6(3) which seeks to justify the contravention of the FSR standard (FSR Request).
In summary, the FSR Request states that compliance with the FSR standard is unreasonable and unnecessary in the circumstances of the case (cl 4.6(3)(a)) because it achieves the objectives of the standard and the R3 zone (discussed below). Furthermore, the FSR non-compliance addresses the particular circumstances of the site and results in a better streetscape and internal and external amenity outcome than a complying development would. The request supports these reasons by addressing the requirements in s 2.2 of the DCP to justify an exceedance of the FSR control. It states that the variation allows for a better planning outcome than a development with a compliant FSR as: ….the distribution of floor space and height has resulted in better amenity outcomes than a potentially complying development. The proposed increased side setbacks, compliant/stepped rear setback and largely compliant height result in a fragmented and articulated built form which has better visual and amenity outcomes than a complying development. It has been established above and as presented in the accompanying shadow and view analysis that the proposed FSR provides for equal to or better planning outcomes in regard to these factors. Furthermore, the proposed FSR is associated with a development which has better visual and acoustic privacy impacts as well as better internal solar outcomes than a potentially complying development. This Clause 4.6 variation has demonstrated that the proposed presentation to the primary street frontage of Bondi Road is modest when viewed from the public domain. The steep drop in topography ensures that only the front/southern portion of the built form will be readily visible when travelling by vehicle or when walking along footpaths along Bondi Road. A significant proportion of the built form will be below Bondi Road or to the rear at a lower level. The reduced side setbacks at the southern end and increased side setbacks at the northern end will also contribute to this lack of perception of the built form on the site when viewed from the primary street frontage. This is displayed in the photomontages taken from Bondi Road … Also, when viewed from Edward Street, the stepped form, substantial rear setback and greater than required side setbacks, combined with a largely compliant height, ensure that the proposed built form is predominantly within a potentially complying building envelope. Therefore, the associated density would not appear out of character in Edward Street streetscape. The northern elevation and montages demonstrate that the additional FSR provides for a cohesive and visually compatible outcome that would not warrant a reduced or compliant FSR.
The FSR Request states that there are sufficient environmental planning grounds to justify contravening the FSR standard (cl 4.6(3)(b)), principally because it has been demonstrated that the proposed FSR would achieve equal or better internal and external amenity outcomes such as solar access, privacy, view/outlook and streetscape than a complying development. Furthermore, the proposal replaces two RFBs, with poor internal amenity and adverse external impacts resulting from the narrow side setbacks and lack of outlook, with a high quality RFB with exceptional internal and external amenity outcomes.
The FSR Request also seeks to address the matters that the Court is required to be satisfied of under cl 4.6(4)(a)(ii). In summary, the FSR Request states that the proposed development would be in the public interest because it is consistent with the relevant objectives of the FSR standard for the following reasons: b. to provide an appropriate correlation between maximum building heights and density controls
The FSR is within an envelope established by generally compliant height and setback controls. c. to ensure that buildings are compatible with the bulk, scale, streetscape and existing character of the locality
The proposed development is compatible given that: • The proposed front and rear setbacks are compatible with both adjoining properties • The proposed height is compatible, if not subservient with the presentation to both adjoining properties along Bondi Road and when viewed from Edward Street • The proposed side setbacks improve the relationship of the built form with adjoining buildings either side • The central split in the built form, combined with the facade composition of materials and finishes provides for a coherent and compatible streetscape outcome •The proposed floor space ratio is considered to be commensurate for the high density context of the locality which includes developments of similar or greater floor space ratios and heights of buildings which include the 7-storey building immediately to the west at 332 Bondi Road 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 overall scale of development not only preserves the environmental amenity of neighbouring properties but actually enhances the amenity of neighbouring properties through setbacks, height, stepped built form outlined above. The FSR achieves an equal or better streetscape, external and internal amenity outcomes in relation to shadow impacts, views and privacy as well as improved internal solar access.
The FSR Request states that the proposed RFB would be in the public interest because it is consistent with the relevant objectives of the R3 zone (cl 4.6(4)(a)(ii)) as the amalgamation of the allotments allows for an integrated built form which provides for a well-designed RFB on the site of compatible scale which maintains the amenity to surrounding properties. The proposal provides for an increase in residential accommodation in close proximity to shops, services and public transport.
The FSR Request is supplemented by the Joint Report where Mr Betros notes the particular site circumstances including the steeply sloping topography, two street frontages, 30 m frontage and large site area. He also states that a compliant development on either one or both allotments would have a built form and height closer to the side and rear boundaries and would have greater solar and view impacts than the proposal.
Ms Brown considered that the FSR Request does not demonstrate that the proposal achieves a better outcome than a scheme which complied with the FSR standard and that the circumstances of the site do not preclude compliance. In particular, she notes that the topography of the site is typical of this section of Bondi Road and the proposal responds by providing apartments below street level with excavation of the current ground level.
Ms Brown considers that a compliant scheme would further reduce the massing of the building from Edward Street, the need for privacy screens, enable deep soil planting along the side boundaries, reduce the bulk of the building when viewed from adjoining properties and the provision of additional private open space. She acknowledges that the proposal provides greater side boundary setbacks on the northern end of the site than the existing buildings but that it extends further to the north at an increased height bringing the bulk of the building closer to Edward Street. In her opinion, the amalgamation of the property provides greater opportunity for a compliant scheme rather than a justification for a FSR beyond the control in the LEP.
Mr Smith and Ms Morrish agree that the massing of the building is appropriate. Although, Mr Smith considered that the bulk to Edward Street could be further reduced by setting back the bedroom of Unit 1.02 to align with the adjacent bedroom.
Ms Morrish did not consider this was necessary as the proposal is responsive to the built form pattern in Edward Street. In her opinion, the proposal has two street frontages rather than a rear frontage to Edward Street and it continues the setback character of Edward Street with staggered forms and enclosure. Together with the height and side setbacks, the proposal provides amenity to the units, adjoining development and the streetscape. She considered the FSR to be "a numeric representation of the massing". Submissions
The parties provided detailed submissions on the operation of cl 4.6 in light of the decision of Pearson C in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009 (Four2Five) and Pain J in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 (Four2Five s56A) where Her Honour dismissed an appeal under s56A of the LEC Act against the decision of Pearson C. Mr Galasso SC, for the applicant, with the consent of Mr Staunton, for the council, provided further submissions on the 27 August 2015 on the refusal by the Court of Appeal in Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 (Four2Five s57) of an application for leave to appeal the decision of Pain J under s57 of the LEC Act.
The submissions centred on the construction of cl 4.6(3) and whether, as required by cl 4.6(4)(a)(i), the Court can be satisfied that the FSR Request has adequately addressed the matters required to be demonstrated by cl 4.6(3), namely: (a) 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.
In dealing with the requirements of cl 4.6(3) Commissioner Pearson held at [60-64]: 60 The environmental planning grounds identified in the written request are the public benefits arising from the additional housing and employment opportunities that would be delivered by the development, noting (at p 5) the close proximity to Ashfield railway station, major regional road networks and the Ashfield town centre; access to areas of employment, educational facilities, entertainment and open space; provision of increased employment opportunities through the ground floor retail/business space; and an increase in the available housing stock. I accept that the proposed development would provide those public benefits, however any development for a mixed use development on this site would provide those benefits, as would any similar development on any of the sites on Liverpool Road in the vicinity of the subject site that are also in the B4 zone. These grounds are not particular to the circumstances of this proposed development on this site. To accept a departure from the development standard in that context would not promote the proper and orderly development of land as contemplated by the controls applicable to the B4 zoned land, which is an objective of the Act (s 5(a)(ii)) and which it can be assumed is within the scope of the "environmental planning grounds" referred to in cl 4.6(4)(a)(i) of the LEP. 61 The written request argues that compliance is unnecessary in the circumstances of the case because the proposed development meets the objectives of the standard and the zone objectives, and that insistence on strict compliance would be unreasonable. Achieving the objectives of the development standard notwithstanding non-compliance with the standard was the most commonly invoked way of establishing that compliance with a development standard was "unreasonable or unnecessary in the circumstances of the case" under cl 6 of SEPP 1: Wehbe v Pittwater Council [2007] NSWLEC 827 at [42] per Preston CJ. In Wehbe at [44]-[48] Preston CJ identified other ways in which an applicant might establish that compliance with a development standard is unreasonable or unnecessary, namely that the underlying objective or purpose is not relevant to the development; that the objective would be defeated or thwarted if compliance was required; that the development standard has been virtually abandoned or destroyed by the Council's own actions in departing from the standard; or that the zoning of the land is unreasonable or inappropriate. 62 I agree with the submission of Four2Five that the wording of cl 4.6, being different to that in SEPP 1, requires the decision-maker to be faithful to the language of the clause rather than any stated principles developed in the application of SEPP 1, and that, subject to that caution, the case law developed in relation to the application of SEPP1 may be of assistance in applying cl 4.6. While Wehbe concerned an objection under SEPP 1, in my view the analysis is equally applicable to a variation under cl 4.6 where cl 4.6(3)(a) uses the same language as cl 6 of SEPP1. Consistency with the objectives of the development standard and the zone objectives is now addressed specifically in cl 4.6(4)(a)(ii), with separate attention required to the question of whether compliance is unreasonable or unnecessary, using the same expression as that in cl 6 of SEPP 1, in cl 4.6(3)(a) and 4.6(4)(a)(i) of the LEP. The written request does not identify any of the additional ways of establishing that compliance is unreasonable or unnecessary in the circumstances of the case. … 64 I am not satisfied that the written request has demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard, or that compliance with the height standard is unreasonable or unnecessary in the circumstances of the case, as required by cl 4.6(4)(a)(i), and accordingly the requirements of cl 4.6(4) of the LEP are not met. This conclusion makes it unnecessary to express a concluded view on the application of cl 4.6(5) of the LEP, having regard to the discussion of the equivalent cl 8 of SEPP 1 in Wehbe at [40]-[41], in circumstances where the concurrence of the Director-General is to be assumed (Planning Circular PS 08-003, 9 May 2008, exhibit D).
In upholding the decision in Four2Five s56A, Pain J found at [29-30] and [33-34]: 29 Turning to the first ground of appeal, it refers to a finding of the Commissioner at [60] in relation to the environmental planning grounds identified in the written request, as required by cl 4.6(3)(b). The Commissioner concluded that the grounds referred to were not particular to the circumstances of the proposed development on the particular site. Firstly, it is debatable that this ground of appeal couched as the misconstruction of subclause (4)(a)(i) does identify a question of law. The Commissioner's finding, that the grounds relied on in the written report were not particular to the circumstances of the proposed development on this particular site, is one of fact. That informed her finding of whether the grounds put forward were sufficient environmental planning grounds. 30 To the extent the issue raised can be described as a question of mixed fact and law, the Commissioner is exercising a discretion under subclause (4)(a)(i) in relation to the written report where the terms in subclause (3)(b) of sufficient environmental planning grounds are not defined and have wide import, as the Council submitted. There is no specific limitation on the Commissioner exercising her discretion as to whether she was satisfied under subclause (4)(a)(i), subject to the usual constraints on the exercise of administrative power none of which are raised against the Commissioner in this appeal. …… 33 Turning to ground 2, the Appellant essentially argues that the Commissioner should have allowed the written request responding to cl 4.6(3)(a) considerations of "unreasonable or unnecessary in the circumstances of the case" to be answered by finding that the development is in the public interest as satisfied by subclause (4)(a)(ii). The Commissioner found at [62] and [64] the obligation imposed on the written report by subclause (3)(a) had to be demonstrated separately from the matters addressing subclause (4)(a)(ii). This submission overlooks the terms of cl 4.6 which mandates that the Commissioner cannot grant development consent for development that contravenes a development standard unless satisfied of matters in both subclauses (4)(a)(i) and (ii). The Commissioner has a wide discretion under the terms of subclause (4)(a)(i) in considering whether the written report prepared on behalf of the Appellant satisfied subclause (3). 34 Contrary to the Appellant's submission, and accepting the Council's submission, there is every reason to construe cl 4.6(4)(a)(i) as if it has more work to do than subclause (4)(a)(ii), not least because "and" is between the two subclauses.
In Four2Five s57, Leeming JA outlined the proposed grounds of appeal of relevance as follows: (2) The primary judge erred in law when she determined that the Commissioner had not misconstrued cl 4.6 of the Ashfield LEP 2013 in holding that clause 4.6(3)(b) required an applicant for development consent to show that environmental planning grounds existed "particular to the circumstances of this proposed development on the subject site" to justify contravening the development standard. (3) The primary judge (and the Commissioner) misconstrued clause 4.6 of the Ashfield LEP 2013 in holding that an applicant who seeks to justify the contravention of a development standard must demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case by reference to other ways or matters than those referred to in clause 4.6(4)(a)(ii).
His Honour states at [13] that proposed ground 2 turns on [60] of Pearson C's judgment and at [14-15] Leeming JA refers to the decision of Pain J where: 14 The primary judge said that it was "debatable" whether this ground identified a question of law, because whether or not the written request identified circumstances which were particular to the development on the particular site was one of fact: [2015] NSWLEC 90 at [29]. In any event, the primary judge noted that the power to grant consent under cl 4.6(4)(a) turned upon a state of satisfaction that the written request had "adequately addressed" the matters required to be demonstrated by subclause (3), and saw no error in the approach taken. 15 It is sufficient to state that no error, and certainly no error of law, is disclosed in the Commissioner's reasoning at [60] reproduced above. It is clear that the Commissioner approached the question of power posed by subclause (3)(b) on the basis that merely pointing to the benefits from additional housing and employment opportunities delivered by the development was not sufficient to constitute environmental planning grounds to justify contravening the development standards in this case. That does not give rise to a question of law.
In relation to proposed ground 2 Leeming AJ states at [16]: 16 So far as may be gleaned, proposed ground three asserts that the Commissioner approached the question of satisfaction in relation to subclause 3(a) on the basis that regard could only be had to matters other than those referred to in cl 4.6(4)(a)(ii). Two things may be said about this ground. First, it is not apparent that the Commissioner did proceed on that basis. Her reference in [62] to "additional ways of establishing that compliance is unreasonable or unnecessary in the circumstances of the case" accepts that matters of consistency with objectives of development standards remain relevant, but not exclusively so. Secondly, as the primary judge noted at [3], success on this ground alone would not result in the appeal being upheld. That is because the Commissioner was not satisfied as to either of the matters in subclause (3).
The submissions of Mr Galasso SC and Mr Staunton were consistent with the Four2Five s57. They agreed that the question of "sufficient environmental planning grounds" (cl 4.6(3)(b)) is one of fact and that there are no specific limitation on the Court exercising discretion as to the satisfaction under subclause (4)(a)(i), subject to the usual constraints on the exercise of administrative power. Furthermore, consistency with the objectives of the standard remain relevant to the question of whether "compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)), but not exclusively so.
There was also general agreement in the submissions that the other "tests" identified in Wehbe v Pittwater Council [2007] NSWLEC 827 at [44]-[48] are additional matters to whether the objectives of the standard are achieved (Wehbe "test" 1) which may establish that compliance with a development standard is unreasonable or unnecessary for the purposes of cl 4.6(3)(a). Namely that the underlying objective or purpose is not relevant to the development (Wehbe "test" 2); that the objective would be defeated or thwarted if compliance was required (Wehbe "test" 3); that the development standard has been virtually abandoned or destroyed by the Council's own actions in departing from the standard (Wehbe "test" 4); or that the zoning of the land is unreasonable or inappropriate (Wehbe "test" 5).
The submissions discussed whether the "tests" in Wehbe are mutually exclusive, for example, if it is found that the proposal is consistent with the objectives of the standard under cl 4.6(4)(a)(ii) this may be inconsistent with a finding that the standard had been abandoned for the purpose of cl 4.6(3)(a). Mr Galasso submits that this is not the case. If, for the purpose of cl 4.6(4)(a)(ii), consistency with the objectives of the standard is satisfied (Wehbe "test"1) and for the purpose of cl 4.6(3)(a), other tests are required (Wehbe "tests" 2-5), which are mutually exclusive with "test" 1, then logically cl 4.6(3)(a) and cl 4.6(4)(a)(ii) can never both be satisfied and consent under cl 4.6 can never be granted. Mr Staunton submits that in addressing cl 4.6(3)(a)(i), if, for any of reasons in Wehbe 2-5, an objective of the standard is no longer relevant or not expressly relevant to the development then under cl 4.6(4)(a)(ii) the proposed development could still be consistent with the objective of the standard because it is not of relevance. For example, objective 1(a) of cl 4.4 of the LEP "to ensure sufficient floor space can be accommodated in the Bondi Junction Centre to meet foreseeable future needs" is not relevant to this development and, therefore, the development is not inconsistent with it.
It was also agreed that the Wehbe "tests" are not exhaustive or prescriptive. In Wehbe, Preston CJ discussed the authorities which dealt with grounds of objection to establish that compliance with the standard was "unreasonable or unnecessary in the circumstances of the case" for the purpose of cl 6 of State Environmental Planning Policy No 1 - Development Standards (SEPP 1). For the purpose of cl 4.6(4)(a)(i), the Court in exercising its discretion must be satisfied whether the written request has sufficiently dealt with the question of whether compliance with the development standard is unreasonable or unnecessary in this case and may consider matters other than those addressed in Wehbe.
The submissions disagree on whether, in dealing with the task in cl 4.6(4)(a)(i), only the applicant's written request can be considered or whether this can be supplemented by other written material, such as the joint report, oral evidence and submissions, to effectively become the written request as was the case with an objection under SEPP 1. Mr Galasso SC submits that SEPP 1 also required an objection to be in writing (cl 6) and the consent authority to be satisfied that the objection is well founded (cl 7). This has been construed as being the written documents at the point of determination and there is authority for SEPP 1 that this includes oral evidence and submissions as these are incorporated into writing which would also be of relevance to cl 4.6 (see Lane Cove Council v Orca Partners Management Pty Ltd (No 2) [2015] NSWLEC 52). Mr Staunton submits that cl 4.6(4)(a)(i) is limited to considering only the documents that comprise the written request and does not include the oral evidence or the oral submissions. He acknowledges that there is case law in relation to SEPP 1, which enables consideration of oral evidence and submissions but SEPP 1 is in different terms to cl 4.6 as it requires a written objection and consideration of the objection. Whereas, cl 4.6(4)(a)(i) requires consideration of the written request. He accepts that this can comprise the FSR Request supplemented by the Joint Report and that the oral evidence and submissions can assist the Court in understanding the written request but are not written documents unless they are provided as such for consideration.
The other key difference in the submissions was whether there are adequate additional matters to establish whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. Mr Galasso SC submits that in addressing cl 4.6(3)(a), the FSR Request demonstrates that "the appropriate streetscape outcomes associated with the floor space variation combined with better amenity outcomes than a potentially complying development demonstrate that the proposal is a better form of development…." The FSR Request supports this position through a discussion of the requirements in s 2.2 of the DCP for a variation of the FSR control. In Mr Galasso's submission, this addresses the "test" 3 in Wehbe, which is "to establish that the underlying objective or purpose (of the standard) would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable". Although discussed, he did not press a submission that the standard had been abandoned on the basis of the VPA Policy (Wehbe "test" 4).
In relation to cl 4.6(3)(b), Mr Galasso submits that this is adequately addressed in the FSR Request and that the "facts" are that there are sufficient environmental planning grounds to justify contravening the FSR standard, including the internal and external amenity outcomes, replacement of the existing buildings as well as the topography and amalgamation of the site.
Mr Staunton submits that "test" 1 in Wehbe requires identification of the relevant objectives of the standard and consideration of whether the proposed development will achieve that objective to an equal or better degree than a development that complied with the standard. It is not enough to say that absence of environmental harm justifies the contravention (see [70-75] of Wehbe). In his submission, the FSR Request asserts that the outcome from this development is better than a complying development but this is not demonstrated. Clearly a development with greater compliance with the standard would be smaller in size but there is no comparison between the proposal and a complying development against the objectives to determine whether or not the proposed development achieves an outcome which is equal to or better than a development that complied with the standard. Mr Staunton submits that while this is not a mandatory requirement of cl 4.6 it is relevant in considering whether the objectives of the standard are achieved and compliance with the standard is unreasonable or unnecessary.
Mr Staunton's submission is based on the evidence of Ms Brown that the proposal does not achieve an outcome which is equal or better than a complying development and is therefore not consistent with the objectives of the FSR standard so as to satisfy cl 4.6(4)(a)(ii). Furthermore, there are no particular circumstances of the case which would justify that compliance with the standard is unreasonable or unnecessary as the objectives of the standard are not achieved nor would they be thwarted by a complying development. The FSR Request also does not demonstrate that there are sufficient environmental planning grounds to justify contravening the standard. The reasons do not demonstrate circumstances which are particular to the development on the site or that could not be achieved by a complying development. Mr Staunton therefore submits that the FSR Request does not demonstrate the satisfaction required by cl 4.6(4)(a)(i).
The parties made submissions on cl 4.6(4)(b) which requires that the concurrence of the Director-General has been obtained. It was common ground that the Court can assume concurrence. The parties also made submissions as to the extent that the Court might be required to consider the matters specified in cl 4.6(5) (see Wehbe at [41]), namely whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard.
Mr Galasso SC submits that, for the reasons outlined in the FSR Request, the contravention of the development standard does not raise any matter of significance for State or regional environmental planning (cl 4.6(5)(a)). He accepts that there is generally a public benefit in maintaining a development standard (4.6(5)(b)), but given that other aspects of cl 4.6 are satisfied and there are sufficient circumstances particular to this site and this development, then the only public benefit in maintaining the development standard is for the sake of maintaining it. He submits that the characteristics of the site are not repeated throughout the zone and the variation would not undermine the standard.
Mr Staunton submits that in this particular case there is a public benefit in maintaining the development standard as there has not been a proper justification for the contravention, which is both significant and substantial. Nor has there been evidence that the standard has not been consistently applied.

Findings

The judgements in Four2Five recognise that the wording of cl 4.6 is different from SEPP 1 and that the approach to the principles in relation to SEPP 1 does not apply precisely. Nonetheless, cl 4.6(3)(a) uses the same language as cl 6 of SEPP 1 and Pearson C found in Four2Five at [62] that the ways in Wehbe of establishing that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (Wehbe [42-48] are equally applicable. This reasoning was accepted by Pain J and the Court of Appeal noted that matters of consistency with objectives of development standards remain relevant to cl 4.6(3)(a), but not exclusively so.
In Wehbe at [42-43] Preston CJ states: 42…..The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard: see SCMP Properties Pty Limited v North Sydney Municipal Council (1983) 130 LGERA 351 at 379; Hooker-Rex Estates v Hornsby Shire Council, unreported, LEC No 10506 of 1982, 27 July 1983, Bignold J, pp 16, 18 and 20; Gergely & Pinter v Woollahra Municipal Council (1984) 52 LGRA 400 at 406-407, 412-413; Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGRA 438 at 441; North Sydney Municipal Council v Parlby, unreported, LEC No 10613 of 1985, 13 November 1986, Stein J at p 5; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; Leighton Properties Pty Ltd v North Sydney Council (1998) 98 LGERA 382 at 386; Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 97; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282-283; Memel Holdings Pty Ltd v Pittwater Council (2000) 110 LGERA 217 at 220-221; Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at 88[25] - 89[28] and Design 23 Pty Ltd v Sutherland Shire Council (2003) 125 LGERA 380 at 387 [20]-[21]. 43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served). (emphasis added)
The wording of cl 4.6(4)(a)(ii) of the LEP requires that the consent authority is satisfied that: (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 (emphasis added)
The threshold of "consistency" is different to that of "achievement". The term "consistent" has been considered in a judgements of the Court in relation to zone objectives and has been interpreted to mean "compatible" or "capable of existing together in harmony" (Dem Gillespies v Warringah Council (2002) 124 LGERA 147; Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190) or "not being antipathetic" (Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21). Whichever interpretation is adopted the test of "consistency" is less onerous than that of "achievement".
Consequently, a consideration of consistency with the objectives of the standard required under cl 4.6(4)(a)(ii) to determine whether non-compliance with the standard would be in the public interest is different to a consideration of achievement of the objectives of the standard under cl 4.6(3)(a) to determine whether non- compliance with the standard would be unreasonable or unnecessary in the circumstances of the case. The latter, being more onerous, would require additional considerations such as the matters outlined by Preston CJ in Wehbe at [70-76] where His Honour considered whether the objectives of the standard had been achieved in the case before him. As submitted by Mr Staunton, this would involve a consideration of whether the proposed development would achieve the objectives of the standard to an equal or better degree than a development that complied with the standard.
Establishing that compliance with the standard is unreasonable or unnecessary in the circumstances of the case for the purpose of cl 4.6(3)(a) may also be based on "tests" 2-5 in Wehbe, either instead of achieving the objectives of the standard (Wehbe "test" 1) or in addition to that test. Provided they do not contradict with the requirement for consistency with objectives of the standard in cl 4.6(4)(a)(ii) or the objectives are not relevant. The list in Wehbe is not exhaustive but is a summary of case law as to how "unreasonable and unnecessary" has been addressed to meet the requirements of SEPP 1. Clause 4.6(4)(a)(i) - Does the FSR Request adequately address the matters required to be demonstrated in subclause 3?
Clause 4.6(4)(a)(i) requires satisfaction that the FSR Request has "adequately" addressed the two matters required by cl 4.6(3), namely that compliance with the standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.
In considering whether the request has adequately addressed the matters in cl 4.6(3) and applying the above framework to the proposed development, the FSR Request has sought to justify that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case as required by cl 4.6(3)(a) by demonstrating that the relevant objectives of the standard are met by the proposal (Wehbe "test" 1) and would not be achieved or would be thwarted by a complying development (Wehbe "test 3"). It includes a discussion of s 2.2 of the DCP where Control (b) includes matters to be addressed to justify non-compliance with the FSR standard. This involves a consideration of whether the proposed development would achieve a better planning outcome than a development that complied with the standard. I do not accept Mr Staunton's submission that this has not been demonstrated in the information provided. The plans include an indicative complying envelope for the site and the FSR Request includes a written comparison of how the proposal would result in an equal or better planning outcome than a complying development and consequently how the objectives of the standard are achieved.
The FSR Request addresses 4.6(3)(b) by reference to the lack of environmental impact and the environmental benefits that arise from not complying with the standard and that it replaces two existing RFBs with poor amenity.
Although the FSR Request may not address matters under particular headings, in considering the document as a whole I am satisfied that it adequately addresses the matters required to be demonstrated by clause 4.6(3)(a) and (b).
In particular, the FSR Request discusses the characteristics of the site and the development. The site's steeply sloping topography, size, two street frontages, and its context which includes existing buildings of greater height and bulk than the proposal as well as the amalgamation of two allotments result in a large amount of the floor area being below the Bondi Road level and within a setback area between buildings that would be required if the site remained as two allotments, which were developed separately. So although there is a significant exceedance in the numerical FSR control a large amount of this floor area would not add to bulk or result in impacts greater than that from a complying development. The floor area is contained within a bulk and form of development which complies with the height control (other than the lift over run) and is appropriate to its context with acceptable impacts.
Given that I have found that the written request is adequate, it is not necessary for me to determine the parties competing submission in relation to whether the Court can rely on only the written request for the purpose of satisfying cl 4.6(4)(a)(i). Clause 4.6(4)(a)(ii) - Will the proposed development be in the public interest because it is consistent with the objectives of the FSR standard and the R3 zone?
Clause 4.6(a)(ii) requires the Court to be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the FSR standard and the R3 zone.
The relevant objectives of the FSR standard are: 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.
In relation to objective (a) the experts agree that, other than the plant room, lift over run and rear parapet, the height complies with the control in cl 4.3 of the LEP. The applicant has agreed to reduce the parapet and relocate the plant room. Subject to these changes, the experts have agreed that the exceedance of the height control is acceptable as the lift over run is setback from the building edge and will not be apparent from the streetscape or result in material impacts such as view loss or overshadowing. The FSR is contained within an envelope established by the height control and I am satisfied that the proposal is consistent with objective (b).
In relation to objective (c), subject to the changes to Unit 1.02 discussed later in this judgment, I accept the evidence of Mr Betros and the urban design experts that the proposed development is compatible with the bulk, scale, streetscape and existing character of the locality. The adjoining buildings when viewed from both Bondi Road and Edward Street are of similar or greater height and bulk than the proposal as are number of other buildings within the locality. The proposed front and rear setbacks and the separation distances between buildings are compatible with both adjoining properties and other buildings within the locality, as demonstrated in the urban design analysis undertaken by Ms Morrish. The design of the proposal with the central split to Bondi Road and stepped form and increased setbacks to Edward Street, together with the facade composition of materials and finishes provides for a compatible streetscape outcome. I am satisfied that the proposal is consistent with Objective (c).
With regard to Objective (d), some objectors remain concerned about the amenity impacts of the proposal, such as view loss, privacy and bulk. However, the experts have agreed that these impacts are not unreasonable. The overall scale of development preserves the environmental amenity of neighbouring properties to the same extent as a complying development and, in some parts, enhances the amenity of neighbouring properties through increased setbacks. The FSR achieves an equal or better streetscape and external and internal amenity outcomes in relation to shadow impacts, views and privacy as well as internal solar access. The removal of the plant would remove any residual concern about view loss to 307 Bondi Road resulting from a development beyond that anticipated by the planning controls. Any privacy or bulk impacts to 332 Bondi Road also result from development which is set back considerably further than required by the controls. A privacy screen to the west façade of the balconies is not required due to the increased setbacks and the area is one where a degree of mutual overlooking exists. Similarly, any impacts to 3 Edward Street are from a development which is some 30m away across the street. I am satisfied that the proposal is consistent with Objective (d).
The objectives of the R3 zone are: • To provide for the housing needs of the community within a medium density residential environment. •To provide a variety of housing types within a medium density residential environment. •To enable other land uses that provides facilities or services to meet the day to day needs of residents.
Council did not contend that the proposal was not consistent with the objectives of the R3 zone nor was this raised by the experts. Based on Mr Betros' evidence, I am satisfied that the proposal is consistent with the objectives of the R3 zone.
For the above reasons, I am satisfied that the proposed development will be in the public interest because it is consistent with the requirements of cl 4.6(4)(a)(ii). Clause 4.6(4)(b) - Has the concurrence of the Director General has been obtained and the matters in cl 4.6(5) considered?
Clause 4.6(4)(b) requires that the concurrence of the Director-General has been obtained. It was common ground that the Court can assume concurrence. The parties made submissions to the extent that the Court might be required to consider the matters specified in cl 4.6(5) (see Wehbe at [41]).
I am satisfied that for the reasons outlined in the FSR Request, the contravention of the development standard does not raise any matter of significance for State or regional environmental planning (cl 4.6(5)(a). In relation to cl 4.6(5)(b), Mr Staunton's submission is based on there being no proper justification for the contravention of the standard, which I have found is not the case, therefore I accept Mr Galasso's submission that there are sufficient circumstances particular to this site and this development that satisfy the matters in cl 4.6(4) and that any public benefit of maintaining the development standard would not preclude the granting of concurrence. There are no other matters required to be taken into account under cl 4.6(5)(c).
I am satisfied that the proposal meets the objectives of cl 4.6. The proposal is a clever and thoughtful design that is appropriate in its context with acceptable impacts. As discussed above, the requirements of cl 4.6 are met and there is accordingly power to grant consent to the development application notwithstanding the non-compliance with the FSR development standard

Clause 4.6 - Height

The maximum height permissible under cl 4.3 of the LEP is 12.5m. The experts agree that the height of the proposal has been calculated in accordance with the definition in the LEP and that the development, as amended, proposes a maximum height of 14.1 m to the top of the lift over run. However, the majority of the building is below the height standard by up to 3m. Mr Betros provided a written request under cl 4.6(3) which seeks to justify the contravention of the height standard (Height Request), which is similar in format and content to the FSR Request.
Although, Mr Betros did not consider the relocation of the plant was necessary, with this and the other changes to the rear parapet, the experts agreed that the height non-compliance would be limited to the lift over run and is acceptable as it would not be visible from the street or result in amenity impacts.
Mr Galasso submits that the Height Request and the agreement of the experts demonstrate that the variation to the height standard can be upheld.
Mr Staunton accepted that height was not a major concern, given the agreement of the experts, but there remained residual objectors' concerns about view loss. Mr Staunton acknowledged that view loss did not result from non-compliance with the height control but submits that it results from the distribution of floor space above the control. Mr Staunton made similar submissions that the Height Request had not demonstrated that the proposed height meets the relevant objectives of the control to an equal or better degree than a development that complies with the height standard.

Findings

The relevant objectives of the Height standard in cl 4.3(1) of the LEP are: (a) to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties, (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.
As previously discussed, the proposed height would achieve and be consistent with these objectives. In particular, the experts agree that the height of the lift over run would not be apparent from the street as it is setback from the building edge and will not result in impacts such as view loss or overshadowing to neighbouring properties. Similarly, the compatibility of the proposal with the existing character of the locality has previously been discussed. It is in a locality with buildings of varying height, bulk and scale and is compatible with this context. In the immediate context of adjoining buildings, the parapet height of the proposal at Edward Street (RL 61.150) is below the eaves (RL 61.770) and ridge height (RL 64.120) of 334B Bondi Road and the height of the roof of the proposal to Bondi Road (RL 64.250) is below the ridge height (RL 64.930) of 334B. It is also considerably below the height of 332 Bondi Road. The height of the building is modest, particularly within the context of Bondi Road. The bulk of the building is within an envelope established by the height control and setbacks and is compatible with the bulk, scale and setbacks of existing buildings, subject to the change to Unit 1.02 discussed below. No issue was raised by the experts that the proposal would not "positively complement and contribute to the physical definition of the street network and public space", other than issues raised by Ms Brown which are further discussed below.
As discussed above, the proposal is consistent with the objectives of the R3 zone.
For similar reasons to those discussed in relation to the FSR Request, I am satisfied under cl 4.6(4)(a)(i) that the Height Request has adequately addressed the matters required to be demonstrated in subcl 4.6(3). I am also satisfied that the proposed development will be in the public interest because it is consistent with the requirements of cl 4.6(4)(a)(ii). The matters in cl 4.6(5) have also been previously addressed in the discussion in relation the FSR Request. I am therefore satisfied that cl 4.6 is met and there is accordingly power to grant consent to the development application notwithstanding the non-compliance with the height development standard

Merit considerations

In addition the controls in the LEP, there were some areas of disagreement between the other experts in relation to DCP controls. Bulk and four storey appearance to Edward Street
Although the experts agree that the proposal (with the reduced depth of parapet) would comply with the height control in cl 4.3, Ms Brown and Mr Smith were concerned about the bulk of the proposal to Edward Street and that it would present as four storeys. Control (e) of s 2.3 of the DCP limits the maximum number of storeys in the R3 zone for a 12.5m height limit to three storeys. Control (d) permits an attic or additional storey within the height limit, subject to certain criteria. Mr Smith considered that the bulk and storeys could be improved if the living room of unit 1.02 was reduced to align with the adjacent bedroom. The unit could be two bedrooms with a larger terrace. This would provide for a "shadow" under the parapet and a reduction in visual bulk. He acknowledged that the adjoining buildings appear as four and seven storeys but considered that other buildings in the street are generally three storeys. Ms Brown supported this recommendation, although she considered a greater reduction in floor area was required to reduce the bulk from Edward Street.
Ms Morrish and Mr Betros did not consider the setback of the living room to be necessary as the proposed form and alignment of the building is responsive to the built form pattern of Edward Street with narrow lots with staggered frontages that reflect the angled boundary to Edward Street. Furthermore, setback upper floors are not characteristic of the street and the number of storeys relates to the adjoining four storey RFB to the east and the seven story RFB to the west.
In oral evidence, the urban design experts agreed that a similar reduction in bulk sought by Mr Smith could be achieved if the living room were setback a minimum of 1.5m and the bedroom move forward a similar amount and the internal layout of the unit redesigned.

Findings

I accept the evidence of Mr Smith and Ms Brown that it is appropriate that the bulk of the upper level to Edward Street should be reduced. Although the number of storeys would still be four, they would be perceived as three with the upper level setback and would better achieve the requirements of Control (d) and (e) of s 2.3 of the DCP. Buildings in the street are generally three storeys, although some are perceived as four with a pitched roof as the basement or base to the building is often elevated above the garage level with window and door openings, as is the case with the building to the east.
While existing buildings in the street do not have setback upper levels, I do not accept that this built form would be inconsistent with the existing and likely future character of the area as it is envisaged as an appropriate built form in Control (e) of s 2.3 of the DCP. I accept that the perception of three storeys with setback upper storey could be achieved by glass line of living room of Unit 1.02 being set back a minimum of 1.5m, although I do not accept that the glass line of the bedroom should be brought forward as this would then not align with the glass line of the floors below and change the streetscape presentation when viewed from the west. It may be necessary to also setback the parapet, delete the column between the living room and the bedroom and east end wall of the living room to achieve the effect of a setback upper level, however, these are details that are best left to the architect to resolve.

Side setbacks

In dealing with the cl 4.6 objections for FSR, Ms Brown raised concerns about the side setbacks at the southern end of the building, which are below the numerical control of 4.5m in the DCP. However, no merit issues were identified with this non-compliance. The experts supported the increased setbacks to the northern end of the building but agreed that the basement should be redesigned to achieve greater deep soil planting adjacent to Edward Street on the eastern side. A minimum of 2m could be achieved through the deletion of the eastern stair access to Unit LG 2.02 and shifting car spaces 5 and 6 to the west, whilst maintaining a blind aisle to car space 4 and access to the fire egress. Mr Smith also considered that greater deep soil planting could be achieved on the western side by changes to the driveway, which would improve the presentation of the building to Edward Street (Exhibit P). Ms Brown supported these changes.

Findings

The side setbacks are greater than the 4.5m required under Control (d) of s 2.5.2 of the DCP at the northern end of the building (6.2m) and less at the southern end of the building (2.8m) and on average are 4.5m. They are also greater than the setbacks of the existing buildings on the site. The reduced side setbacks to the south are considered to be acceptable as they do not result in any material impact on adjoining properties or the streetscape and they work together with the increased side setbacks to the northern end of the building to enable each unit to have north facing outlooks and to avoid overlooking adjoining properties, which would provide greater amenity to the units and the area than a development which complied with the numerical side setback controls.
Control (b) of s 2.5.2 of the DCP requires that a deep soil area of at least 2m must be provided along one side boundary at a minimum. The proposal provides about 1.5m along both side boundaries. The experts agree that this can be increased to 2m at the eastern side adjacent to Edward Street. I also accept Mr Smith evidence that the deep soil planting should be increased on the western side. This will enable small canopy trees to be planted which will reduce the apparent bulk of the building when viewed from Edward Street and is not unreasonable given that the control in the DCP is a minimum and the exceedance of the FSR standard. Setback to Edward Street
The planning experts disagree on whether the setback to Edward Street is a rear setback for the purpose of s 2.5.2 of the DCP and consequently whether it complies with the 6m "rear" setback control. Mr Betros considers that the northern boundary is not the rear of the site as it has a frontage to Edward Street and that the combination of the greater than required side setbacks and stepped built form result in an appropriate streetscape presentation to Edward Street. He notes that if it were more closely aligned to the setbacks of the adjoining buildings it would be closer to Edward Street. Whereas, Ms Brown considers that it is a rear setback and that the encroachments increase the bulk of the building in Edward Street. She acknowledged that the changes to the upper level and increased deep soil planting would improve the presentation to Edward Street. Findings
Regardless of whether the setback to Edward Street is to a street or is a rear setback the objectives similarly seek that a building is setback to be consistent with or reinforce the existing setbacks. The proposal achieves this objective as the building steps to respond to the alignment of Edward Street and to the adjoining buildings. In achieving this, the "rear" setback is at some points considerably greater than 6m and at others slightly less. Furthermore, the side setbacks at Edward Street are considerably greater than the DCP requirement, which responds to the rhythm of the street and provides amenity to the units and the adjoining properties. Other than the issues discussed above in relation to the upper level and deep soil planting, the setback and presentation of the building to Edward Street is acceptable. Communal and private open space
The experts, other than Ms Brown, agreed that the roof top communal open space should be deleted to address potential privacy issues. They did not consider that communal open space was required due to the proximity of the site to Bondi Beach and parks and the constraints impose by the topography of the site. Ms Brown considers that in the absence of communal open space, greater private open space should be provided in accordance with Control (d) of s 2.3 of the DCP. In her opinion, while all the private open space complies with the minimum area of 10sqm in Control (e) of s 2.14.2, it is not sufficient to justify the removal of the communal open space. Mr Betros states that 5 of the 15 units exceed the numerical requirement. Furthermore, under Control (b) of s 2.14 only 75% of units are required to have private open space. Whereas, all the units in the proposed development have north facing private open space immediately adjoining living areas, which would provide considerable amenity for the occupants. Findings
I accept the evidence of the experts that the deletion of the communal open space is acceptable due to the recreational facilities available in close proximity to the site and the high degree of amenity that is provided by the proposed private open space to each unit, which exceeds the requirements of Control (b) of s 2.14. Furthermore, the reduction in the living area of Unit 1.02 will increase the private open space to that unit and there are a number of other units which exceed Control (e) of s 2.14.2. Apartment size
The experts, except Ms Brown considered the apartment sizes to be acceptable as, other than Unit G.04, they comply or exceed the requirements of Control (d) of Part C2 s 2.18 of the DCP. Ms Brown considered that some units do not satisfy the minimum sizes in the Table to RFDC. Ms Morrish notes that all the apartment sizes comply with the "Rule of Thumb" in the RFDC and the Apartment Design Guide, which has replaced the RFDC. Findings
The apartments are all north facing units which are well designed with functional layouts that will meet the needs of the occupants. The size of apartments, other than one, meets the numerical requirements of Control (d) of s 2.18 of the DCP and all meet its objectives. Other matters
The other matters in dispute between the parties in relation to excavation, stormwater and the size of the plant room and bicycle storage area on LG02 would not be reasons to refuse the application. Mr Galasso accepts that an amended stormwater plan can be provided and that if rock anchors are required a deferred commencement condition is appropriate. The plant room and bicycle storage room will need to accommodate the plant that is to be removed from the roof and potentially storage areas for the units. A condition of consent can be imposed to address council's concerns about these areas being used as habitable rooms.

Final plans and conditions

For the reasons in this judgment, I have found that the appeal can be upheld and the development application approved, subject to the amendments discussed above. Mr Galasso and Mr Staunton agreed that final plans and conditions would be required, in the event that I decided to approve the application.
The final plans should incorporate: 1. changes shown in Exhibit J, including a reduction in the depth of parapet to Edward Street, deletion of the roof top communal open space and the inclusion of full height windows to the eastern façade of the living areas of the units to Edward Street; 2. changes shown in Exhibit P, including reduction in the size of the terrace to unit 2.01, removal of the timber screens to the Bondi Road façade, reduction in the length of the "gill" privacy screens and on the east and west façades by 50%, the louvres on the east and west facades to be 50% transparent, increased setback on the east and west boundary near Edward Street (LG.03) to achieve 2m deep soil width for additional planting; 3. the deletion of roof plant enclosures and relocation of the roof plant to the basement (LG.02), with no increase in excavation. The height of the lift overrun and the adjoining lobby is to be minimised; 4. setback the glass line of the living room of Unit 1.02 a minimum of 1.5m and increase the size of the balcony. It may be necessary to also setback the parapet, delete the column between the living room and the bedroom and the east end wall of the living room to achieve the effect of a setback upper level; 5. amended landscape and stormwater plans are to be prepared (or conditioned) which are consistent with the final architectural plans.
Final conditions are to be prepared which reflect this decision.

Directions

The Directions of the Court are: 1. The applicant is to file and serve final plans which address the matters in paragraph 98 by 3 February 2016; 2. The parties are to file agreed conditions by 10 February 2016; 3. The parties have liberty to restore on two days notice; 4. Upon receipt of satisfactory final plans and agreed conditions, I will issue Orders in chambers which uphold the appeal and approve the development application, subject to conditions. Annelise Tuor Commissioner of the Court 10914 of 2014 - Order (15.03.16) (9.78 KB, pdf) 10914 of 2014 - Annexure A (407 KB, pdf) 10914 of 2014 Tuor_334 Bondi Road_Rev16-17 (13.0 MB, pdf) 10914 of 2014 Tuor_BB_BONDI RD LP01-04 revD_Updated landscape plans (5.25 MB, pdf) 10914 of 2014 Tuor_Stormwater_Combined Set (7.21 MB, pdf)

Amendments 31 March 2016 - Attached PDF documents. 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: 31 March 2016

(2002) 124 LGERA 147

(1983) 130 LGERA 351

(1999) 110 LGERA 262

(2000) 110 LGERA 217

(2003) 125 LGERA 380

At a glance

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Decision date

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Judgment (18 paragraphs)

Parties

Cases Cited (14)

Cited By (20)