Primo Developments Double Bay Pty Ltd v Woollahra Municipal Council

Land and Environment Court (NSW)|2025-02-04

Judgment

COMMISSIONER: As one leaves the Double Bay town centre heading east, New South Head Road rises past two- and three-storey brick buildings to the north, on land that was resumed in the early part of the 20th century to permit the widening of New South Head Road between Cross Street and William Street.
Many of the lots were subsequently consolidated to form walk up residential flat buildings that are standing today, known as 422-510 New South Head Road.
No's 426-440 New South Head Road are now the subject of development application DA28/2024/1 that seeks consent for the demolition of three buildings and the construction of a new part five, part six-storey shop top housing development with ground and first floor retail, twelve residential apartments, basement parking and associated landscaping on five lots legally identified as Lots 4-9 in DP 14000 (the DA).
The DA was lodged with Woollahra Municipal Council (the Council) on 19 January 2024, and was notified between 7 February-8 March 2024 in response to which no public submissions were received.
As the DA was not otherwise determined, the applicants in these proceedings, Primo Developments Double Bay, Sayed Holdings and MHN Design Union (collectively the Applicant) filed an appeal in Class 1 of the Court's jurisdiction on 2 May 2024, under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
At the commencement of the hearing, the Applicant sought leave, unopposed, to rely upon the following amended plans and other documents: 1. Architectural plans DA 2000, DA 5000 and DA 5103 2. Amended clause 4.6 written request of height 3. Amended clause 4.6 written request of FSR 4. Design Verification Statement prepared by Mr Brian Meyerson
The Council, as the relevant consent authority, approved the Applicant so amending the DA by those documents at [6], in accordance with s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), and agreed that the amendments were not more than minor.

The site and its context

The six lots that comprise the site are currently occupied by three buildings that accommodate retails uses on the ground floor, with residential apartments over.
The site is located within the E1 Local Centre zone, and does not immediately adjoin the medium density residential zone to the east, but is separated by one residential flat building, known as 442 New South Head Road, from the boundary with the R3 zone.
A pedestrian link just east of 442 New South Head Road connects the footpath of New South Head Road to Cross Lane to the west, navigated by stairs to accommodate the substantial fall between the two frontages of buildings along this particular block.
As a result of the fall in level, the buildings on the site that present with two storeys to New South Head Road, present as three storeys to Cross Lane. The buildings on the site that present as 3 storeys to New South Head Road present as 4 storeys to Cross Lane. Almost without exception, the lowest level fronting Cross Lane are garage doors.
It is relevant to note here that the parties in this matter identified certain vantage points for the Court to observe at the onsite view that commenced proceedings. Those vantage points included Cross Lane to the rear of the site, and three vantage points along New South Head Road, being further east, directly opposite, and from the south west at the intersection with Knox Street.

The issues

The Council contends that the proposed development is inconsistent with the desired future character of the area in which it is located, because of its height, bulk and scale.
A principal issue that separates the parties is the weight that should be given to the Double Bay Centre Planning and Urban Design Strategy (the Strategy) (Exhibit 4, Tab 17), and how the strategic directions contained therein are to be understood when applied to the site.
It is also relevant to set out the certain provisions of the Woollahra Development Control Plan 2015 (WDCP) that apply to the site.

The Strategy

The Executive Summary, at p 4 of the Strategy states: "The Double Bay Planning and Urban Design Strategy (the Strategy) provides a comprehensive and detailed review of the existing planning controls and establishes a clear and coordinated approach to future development within the Double Bay Centre (the Centre)…Supported by community feedback and additional technical studies, the Strategy will refine the future direction of the Centre as Sydney's stylish bayside village and potential amendments to Council's planning controls. … The recommendations in this Strategy will inform future amendments to the Woollahra Local Environmental Plan 2014 (Woollahra LEP 2014) and the Woollahra Development Control Plan 2015 (Woollahra DCP 2015). …"
Of particular relevance to the proposal now before the Court, the Strategy summarises recommendations including: "… • Adopt a range of building heights from four to six storeys on certain sites. Combined with detailed building envelopes, setbacks and transitions, the proposed controls will maintain the Centre's human scale and its character as Sydney's stylish bayside village. • Facilitate two to five-storey street wall heights with upper storey setbacks. This will provide opportunities for private open spaces and/or communal open spaces, urban greening and avoid excessive bulk and scale. …"
The Strategy identifies sites to which recent development applications or planning proposals apply (p 14), including the subject site where two historical approvals date from 2017 and 2021 of 4-5 storeys in height and with proposed floor space ratio (FSR) of between 2.97:1 and 3.02:1.
The site is identified as a 'Review Site' within the study area, and is in the vicinity of what is called the 'Eastern Gateway' (p 19, Fig 13), and is also located within the New South Head Road (East) Precinct (p 25, Fig 14), as illustrated below:
The site is also identified within an area foreshadowed on Figure 16 to have a maximum of five storeys, that is further reinforced at Figure 20 by reference to a dark blue line to the Cross Lane frontage of the site stating "Five Storey Street Wall height for review sites', and where the frontage to New South Head Road is identified in a green line denoting 'three storey street wall height for review sites' (p 33).
In essence, the Council argues that a maximum of five storeys means just that, and the proposal is unacceptable by virtue of the uppermost storey comprising a sixth storey.
Furthermore, the proposal exceeds the existing height of buildings standard of 14.7m, and the floor space ratio (FSR) standard of 2.5:1. As such, it is at odds with the future character desired in the Double Bay area.
The Applicant submits that a proposal comprising a five storey street wall to Cross Lane, and a three storey street wall to New South Head Road is entirely consistent with the character desired for the site, as sought by the Strategy.
The Applicant relies on two written requests prepared in accordance with cl 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP) to advance its position. The first is in respect of height, and the second is in respect of FSR, as both of the relevant standards are exceeded.
In considering the height, bulk and scale, and character of the proposal, the Court was assisted by the following experts in planning and urban design, who conferred in the preparation of a joint expert report filed on 21 January 2025 (Exhibit 1): 1. Town Planning: Ms Ellie Peedom on behalf of the Council and Mr George Karavanas on behalf of the Applicant. 2. Urban design: Mr Stephen McMahon on behalf of the Council, and Mr Paul Walter on behalf of Applicant.

The Woollahra Development Control Plan

The site is located in an area of Double Bay centre identified at Part D5.4 of the Woollahra Development Control Plan 2015 (WDCP).
Part D5.4.1 of the WDCP sets out the following desired future character for the area in which the site is located: The street is the primary organising element of urban structure. The street edge is the place where the public and private domains meet. By defining a particular vision for each street, public domain improvements and private development can be coordinated to produce a desired outcome. This section describes the desired future character of each street in the Double Bay Centre. The Double Bay Centre Public Domain Improvements Plan (1999) should be used as a reference for works in the public domain, such as street tree planting, footpath design, street furniture and traffic devices. The following is provided for each street in the centre: Existing character, which describes elements such as built form, streetscape, lighting, landscape and views; Desired future character, which outlines the urban design criteria for each street; Annotated street sections, which illustrate the existing and the desired future built form. …
The existing character of New South Head Road is described at Part D5.4.3 of the WDCP in the following terms: New South Head Road is a historically significant road connecting the city to South Head. The road traverses the Double Bay Centre where it has a strong curved form punctuated with vistas of green at either end. The quality and scale of existing buildings do not yet realise the potential of the space.
The desired future character of New South Head Road is also described in Part D5.4.3 as follows: a) Accentuate the curved street geometry of New South Head Road with four and five storey buildings. b) Retain green vistas at each end of New South Head Road. …
A typical cross section of development on New South Head Road is also contained in Part D5.4.3 of the WDCP, although it is taken at a location southwest of the subject site, within the Double Bay centre in the approximate vicinity of No 354 New South Head Road. To the extent it is relevant, it depicts five storeys to the south of New South Head Road, and 4 storeys to the north of New South Head Road. On both sides of the diagram, the uppermost levels are shown setback within what is identified as an 'articulation zone'.
The cross section for New South Head Road is annotated and contains the following guidance as to desired future character: Setback development of the upper-most floor level from the street boundary Build to the street alignment with masonry walls, articulated with deep window reveals or punched openings Integrate sound attenuation devices into the design of the built street edge with enclosable balconies, articulated window sills, string courses, double glazing and the like. Parapets encouraged Use the ground floor level articulation zone to encourage transition from the street to the shop - this space could also be used for outdoor dining or shop display Provide continuous awning
Part D5.5.1 of the WDCP deals with urban form through control drawings that illustrate how floor space is intended to be distributed over the site.
The control drawing at Part D5.5.6 of the WDCP nominates a 4 storey built form on the site, with a note that the designation relates to 13.5m building height along New South Head Road.
While the Strategy is at odds with the provisions of the WDCP, the provisions of a development control plan are a matter to be taken into consideration by s 4.15(1)(iii) of the EPA Act.

The desired future character of the neighbourhood or area

It is commonly held between the parties that the principal concern of Council's experts is in respect of whether the proposed development is consistent with the desired future character of the area, that being an objective of both the height standard and FSR standard. As such, it is the consistency with the desired future character asserted in the two written requests prepared in respect of the exceedance in height and FSR that is disputed.
For this reason, it is helpful to set out competing opinions as to what constitutes the desired future character of the relevant neighbourhood or area before turning to the question of whether the Court's power to grant consent is enlivened under cl 4.6 of the WLEP.
For completeness, Council's experts do not contend that the proposal imposes any adverse environmental impacts, and Mr McMahon also agrees the Double Bay centre is evolving, including as a result of approvals that have varied from the controls.
Mr Karavanas has tabulated those approvals in two tables (Exhibit C, Tab 1). Table 1 is a list of approvals identified by the Applicant. Table 2 is a list of additional sites for which consent has been granted, identified by the Council.
Given a difference of opinion between the experts as to whether certain approved developments marked in the table as non-complying were in fact so, or were compliant developments for which consent was granted, the Court granted an adjournment that resulted, on resumption, in confirmation that the table correctly identified those developments as being approved notwithstanding non-compliance with the height standard.
That said, Mr McMahon believes the four storey desired future character was achieved in each of the three developments in question, and the experts agree the non-compliance did not result in additional gross floor area.
Mr McMahon does not believe the Strategy assists in determining the desired future character of the area because it is neither imminent or certain, and because the Strategy is ambiguous, is poorly drafted, and has not relied on accurate topography in the area to inform its conclusions.
To this end, the Strategy would appear to impose a maximum of five storeys on the site, while also stipulating, at Figure 20, a five storey street wall height to Cross Lane. This may be because the underlying image in Figure 24 appears to be a flat, and not undulating, topography as is clearly the case on the site. Mr McMahon's conclusion is that the Strategy is not the fine grained analysis it claims to be on p 7 of the Strategy.
On p 11 of the joint report, Mr McMahon asserts the Strategy is also incomplete and unreliable because, firstly, no change is proposed to that part of Double Bay other than 'review sites' and so parts of Double Bay centre will be unaffected by any change in controls, and secondly, because the Council directed that amendments be made to upper level setback controls shown in the Strategy at a meeting of Council on November 2023 (Exhibit 4, Tab 18).
According to the experts, those approvals listed at [38] either represent approvals that have the effect of establishing building heights that are consistent with the desired future character of the neighbourhood or area in which the site is located, or are irrelevant to the matter at hand because those approvals listed are not for development located within the neighbourhood or area relevant to the proposal, but to a much wider area of Double Bay.
Mr McMahon's view is that the relevant neighbourhood or area is not of the wide area of Double Bay, but is instead limited to that area referred to by the experts as the 'Eastern Gateway', being a broadly identified area north east of Cross Street, in which the site is located. I note here that the reference appears first in a document cited by Mr Walter, Mr Karavanas and Mr McMahon and titled 'Draft Double Bay Centre Public Domain Strategy 2016' (Public Domain Strategy) (Exhibit C, Tab 7), and is also referred to in [19] within figures contained in the Strategy.
The Public Domain Strategy is agreed by Mr Walter to be the primary strategic planning document regarding the public domain within Double Bay. Mr Walter's written evidence is that the Public Domain Strategy supports strengthening gateway experiences to enhance the sense of arrival into the Double Bay Centre.
It is this area that Mr McMahon believes is clearly separate to Cross Street, New South Head Road and Bay Street where historical approvals exceeding controls are to be found. Mr Walter would appear to agree, observing that the transition from 'road character' to 'street character' and from 'sloping' to 'flat' occurs in the vicinity of the Eastern Gateway.
Mr McMahon believes those approvals on site west of Cross Street are the result of very different factual circumstances in a different and distinct neighbourhood or area, reflected in changes in paving and the prevalence of street furniture and footpath awnings appropriate to the more commercial focus of New South Head Road, west of Cross Street.
Those differences are reflected in the control drawings found in at Part D5.5.6 of the WDCP and in provisions foreshadowed in the Strategy, including a lower FSR and street wall heights addressing New South Head Road.
Mr Karavanas prefers to see the relevant neighbourhood area to be firstly that of the Double Bay centre in which the various listed approvals are located, and secondly, or more specifically, the distinct character of New South Head Road that is identified at Part D5.4.3 of the WDCP, encompassing both sides of New South Head Road from Bay Street to a location east of the subject site.
Two recent approvals are located within the New South Head Road character described above. These include decisions of the Court in Symond Family Investments Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1789, in respect of No 356-366 New South Head Road, and Bureau SRH Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1677, in respect of No. 394, 396-398 and 400 New South Head Road.
Mr McMahon regards these as too remote from the site to influence character, and prefers those approvals at 422-424 New South Head Road and on the subject site granted in 2017 and 2021.
The Applicant considers the first approval at 422-424 New South Head Road to be of little relevance, given the consent was granted in 2002, and notes that those approvals on the subject site exceeded the height that remains applicable on the site.
Furthermore, the Applicant submits that a block comprising just 5 buildings cannot have a distinct character from either the residential flat buildings in the R3 zone to the north east, or from the mixed use development west of the site on New South Head Road.
Next, to the extent the Strategy regards the area east of Cross Street to be any different from that west of Cross Street, it is found only in the lower street wall height of 3 storeys, rather than the 4 storey street wall to the west, and in a lesser FSR to the east of Cross Street.
The Applicant argues that it provides a 3 storey street wall to New South Head Road, and relies on the FSR Request in respect of that exceedance. The Applicant also submits that in doing so, it has prompted not one public objection to the proposal, and proposes a height and bulk that Council's experts agree does not impose an adverse environmental impact.
To the extent the Council contends the floor to floor heights are deficient, and have been reduced from that sought by the Objective 4D of the Apartment Design Guide, Mr Karavanas points to the New South Head Road elevation that shows the height of the ground floor broadly aligning to heights of neighbouring buildings to demonstrate a good fit within its context.

The height and FSR standards are exceeded

The height of building standard at cl 4.3 of the WLEP permits development to a height of 14.7m on the site. That said, the height may be exceeded, subject to provisions also found in the WLEP at cl 4.6.
The proposed development exceeds the permitted height, and a written request authored by GSA Planning and dated December 2024 seeks to justify the contravention of the height standard (the height request) (Exhibit 1, Annexure H).
The height request describes the proposed uppermost height ranging from 16.14m to 18.96m, with a street wall height of three storeys to New South Head Road, and a frontage to Cross Lane of five storeys. Those areas of built form above the height standard are said to be designed to minimise impacts of privacy, views and solar access for nearby residential development. As stated at [37], the experts agree no such impacts arise.
The Height Request asserts that compliance with the 14.7m height standard is unreasonable or unnecessary in the circumstances of this case as the proposal achieves the objectives of the height standard notwithstanding the noncompliance.
The objectives of the height standard at cl 4.3 of the WLEP, with which the proposal is said to be consistent, are as follows: (a) to establish building heights that are consistent with the desired future character of the neighbourhood, (b) to establish a transition in scale between zones to protect local amenity, (c) to minimise the loss of solar access to existing buildings and open space, (d) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, (e) to protect the amenity of the public domain by providing public views of the harbour and surrounding areas.
In addition to the objectives of the standard, the Height Request also cites the provisions of the Strategy that anticipate five storey development at a height of 19m for development in the New South Head Road block.
In the first instance, the proposal is said to be consistent with the objectives of the height standard for reasons that might be summarised as follows: 1. The proposal includes a mix of retail and residential uses that are accessible by active and public transport and which encourage new business opportunities and employment and also clearly enable residential development in a manner that contributes to a vibrant and active local centre, consistent with objectives for development in the E1 Local Centre in which the site is located. 2. Furthermore, surrounding development is mixed use development of between two and six storeys that results from the provisions of the WLEP and approved development in the area including development that contravenes the height standard, whether the Double Bay centre or a more localised precinct is the measure. I expand more on the argument contained in the Height Request at [65]. 3. In respect of objective (b), the site does not adjoin any other zone with which a transition is required. 4. In respect of objective (c), the height request states that shadow is cast over portions of an adjoining building, New South Head Road itself and part of the footpath opposite. However, that is not an area classified as open space and the shadow is no greater than that of an envelope that complies with the relevant standard. 5. In respect of objective (d), the height request describes ways in which the impacts of the development in terms of views, privacy, overshadowing and visual intrusion are minimised. I note here that the experts agree those impacts are minimised, but for the loss of solar access. 6. Finally, in respect of objective (e), the height request identifies no relevant public views required to be protected.
In further respect of objective (a), the Height Request provides two scenarios in which the local neighbourhood may be defined. The first is the area of the Double Bay centre identified at Fig 2 of the Height Request, described as the E1 zone in which the height standards range from 14.7m to 23.5m. In this scenario, the Height Request considers the area to which the desired future character applies to be more than the visual catchment around the site. So understood, the Height Request provides a table of approvals in the Double Bay centre, including the distance from the site, the height of the development as approved, and the variation of the standard expressed as a percentage deviation.
The second scenario is premised on identifying a precinct or area of which the site is a part, in the manner adopted by the Court in Pallas Development Management Pty Limited trading as Fortis Development Group v Woollahra Municipal Council [2023] NSWLEC 1005. In this case, the Height Request re-produces the New South Head Road street character map from Part D5.4.3 of the WDCP to locate the site within the relevant neighbourhood or area.
The objectives for development in the E1 zone, invoked at [64(1)], are as follows: • To provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area. • To encourage investment in local commercial development that generates employment opportunities and economic growth. • To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council's strategic planning for residential development in the area. • To encourage business, retail, community and other non-residential land uses on the ground floor of buildings. • To provide for development of a scale and type that is compatible with the amenity of the surrounding residential area. • To ensure development is of a height and scale that achieves the desired future character of the local centre. • To encourage development that is compatible with the local centre's position in the centres hierarchy. • To ensure development provides diverse and active ground floor uses to contribute to vibrant and functional streets and public spaces. • To maximise public transport patronage and encourage walking and cycling. • To encourage the retention and planting of trees and other vegetation as part of development to minimise the urban heat island effect and to improve microclimates.
Next the Height request sets out four environmental planning grounds said to be sufficient to justify the contravening of the height standard. Those grounds are summarised as follows: 1. Firstly, because the proposal is consistent with its context. It presents a three storey street wall to New South Head Road, a five storey street wall to Cross Lane, and a recessed topmost storey that is consistent with the desired future character of the area. That character is evident in recent approvals granted for development in the Double Bay centre, including development that exceeds the relevant controls at Nos 376 and 394-400 New South Head Road, and in seven other approvals in the New South Head Road precinct, as defined by Chapter 5.4.3 of the WDCP that proposed height greater than that now proposed. 2. Secondly, the proposal achieves the objectives of the E1 zone, set out at [64(6)] for reasons that follow: 1. The mix of retail tenancies on the ground level and lower ground levels provides uses that serve the needs of people in the area and encourages investment in local commercial development above which residential uses are proposed, consistent with the Council's strategic planning for the area. 2. Likewise, the retails tenancies are proposed at grade to both New South Head Road and Cross Lane frontages, and so serve to activate both frontages and contribute to vibrant and functional streets that are accessible to different forms of public transport that help to encourage walking and cycling. 3. The overall height of the proposed development is similar, and so compatible, to those developments in the area for which consent has been granted or where, in the case of development on Cross Street, development has been constructed. 4. The height of the proposal fronting New South Head Road complies with the existing height controls, and sets back the uppermost levels to reduce the height, bulk and scale visible from the street and surrounding development, to provide a built form in keeping with the desired future character of the area. 5. While there are no trees or other vegetation on the site to be retained, the proposal integrates landscape planters at each level to minimise urban heat and improve microclimates in the apartments. 1. Thirdly, consistency with the Strategy is achieved by demonstrating development that is consistent with the height of 19m proposed for the site, and where the site is subject to a steep cross fall, falling towards Cross Lane where a five storey street wall is likewise presented in accordance with the Strategy. 2. Fourthly, the additional height facilitates the delivery of residential space in a highly accessible, well-serviced location that is not viewed from street frontages but is instead setback to avoid overbearing bulk or scale. 3. Fifthly, urban design benefits flow from the proposal that minimise the potential impacts of the additional height. Those benefits are described in the Height Request to include an appropriately scale cross section for a gateway location, well-located accommodation, integrated vehicle and site servicing, activation of Cross Lane and architectural excellence in a landmark position.
The parties submit that the exceedance in height is not unrelated to the exceedance of the FSR standard. As it is put by Mr McMahon in the joint report, the FSR is directly attributable to the height exceedance. For this reason, I will now consider the written request in respect of the FSR exceedance .

The FSR standard is exceeded

The FSR standard applicable to the site on the relevant map at cl 4.4(2) of the WLEP is 2.5:1 which is exceeded by the proposal. The GFA Calculations depicted on Drawing DA-5000 of the architectural plans (Exhibit A) show the FSR expressed as 3.3:1.
As in the Height Request, the FSR Request asserts that compliance with the relevant standard is unreasonable or unnecessary in the circumstances of this case as the proposal achieves the objective of the FSR standard notwithstanding the non compliance.
The one relevant objective at cl 4.4 of the WLEP is: (1)(b) for buildings in Zone E1 Local Centre and Zone MU1 Mixed Use - to ensure that buildings are compatible with the desired future character of the area in terms of bulk and scale.
As in the Height Request, the FSR Request considers the proposed FSR consistent with the built form of the Double Bay centre area, and the New South Head Road street character cited at [66]-[77], and of the desired future character of the area when the relevant development standards and approved development that contravenes the development standards are also factored: Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 at [63].
The objective at [72] is achieved for reasons that are virtually identical to those at [65]-[66] but for the controls relied on being those FSR controls ranging between 2.5:1-4.5:1, and where the exceedance of FSR controls on New South Head Road, nominated in Table 1 of the FSR Request, ranges from 3.01:1 at 356-366 New South Head Road, to 3.76:1 at 394-400 New South Head Road.
The FSR Request attributes the FSR exceedance firstly to the uppermost floor that is within the height foreshadowed by the Strategy, and secondly by the provision of retail uses on the lower ground floor that present to Cross Lane, and so activates a part of the Double Bay centre foreshadowed by the Strategy as the location of a new plaza (Fig 35) and by the Public Domain Strategy as a new urban park. Furthermore, the retail tenancy argued by the FSR Request to be an element of the exceedance is in the location identified by Fig 34 of the Strategy as a secondary active retail frontage, and where the existing condition along the Cross Lane frontage is almost exclusively garage doors.
The environmental planning grounds advanced in the FSR Request are identical to those advanced in support of the Height Request.

Findings

The Court has previously found the emerging character of the northern side of New South Head Road Double Bay centre to be one that exceeds the controls for height and FSR. I note here that, for reasons that follow, there is no aspect of the evidence in this case that would suggest a change in that finding is warranted.
While I have some sympathy for Council's submission that the Strategy would appear to state that a five storey maximum is foreshadowed on the site, there are two things to be said about this: 1. Firstly, the Strategy entertains a five storey street wall to Cross Lane, and a three storey street wall to New South Head Road. The proposal does just that. 2. Secondly, whether a sixth storey, which exceeds the height standard, is acceptable is primarily a consideration to be undertaken in accordance with cl 4.6 of the WLEP, and not an assessment of consistency with the Strategy.
In undertaking such consideration, I believe it is only reasonable to accept as truthful the statements contained within the Strategy as to the degree of analysis undertaken in preparation of the Strategy. I cannot accept that such an undertaken has been wilfully blind to the topography that so obviously defines the Double Bay centre and its environs.
The Strategy foreshadows a 19m height limit on the subject site - a site that is elevated above that part of New South Head Road to the south west, and to Cross Lane to its west.
The foreshadowed height of 19m is consistent with the height of the development at 394-400 New South Head Road, and is largely consistent with that of the development for which consent was granted at 356-366 New South Head Road. Both are within the New South Head Road character identified at Part D5.4.3 of the WDCP.
I note here that the Council submits the height of 19m is only achieved by failing to observe the minimum floor to floor heights on p 30 of the Strategy, said to be derived on the floor to ceiling heights at Objective 4C of the Apartment Design Guide (ADG). In fact, the proposal exceeds the floor to floor heights at Figure 4C.5 of the ADG for apartments on the Ground level, and Levels 1-3, and does not nominate a café or restaurant in the retail spaces on the ground or lower ground level of the proposal, to which the ceiling height of 4m at ground is directed in Figure 4C.1 of the ADG. Instead, it would appear the height of the lower ground level is determined by the cross fall from New South Head Road to Cross Lane, which allows the activation referred to at [75].
The proposal also displays characteristics consistent with the guidance in the WDCP as to desired future character at [31] inasmuch as masonry walls are aligned to the street frontage with deep window reveals, and because the uppermost floor of the proposed development is setback from the street boundary.
While Council relies on the Control drawings to submit that a change in character is evident by virtue of the WDCP requiring footpath awnings to New South Head Road on only one side of Cross Street, the reality is the existing buildings do have footpath awnings, and the proposal seeks to provide the same. This lends weight to the characterisation by the Applicant that the site, being located within the E1 Local Centre zone, is not distinct, but connected, to the Double Bay Centre south west of Cross Street.
The proposal also demonstrates consistency with the Strategy insofar as it provides a three storey street wall height to New South Head Road, and a five storey street wall height to Cross Lane.
That said, it is, in my view, entirely conceivable that the mooted change in street wall height from four to three storeys along New South Head Road east of Cross Street accounts for the change in topography. A three storey street wall east of Cross Street would appear to notionally continue the topmost datum of a four storey street wall south west of Cross Street when it is understood that New South Head Road rises approximately one storey between the intersection with Cross Street and the subject site. In other words, the rise of New South Head Road conceivably absorbs the one storey by which the street wall height is shown reduced.
It is also worth noting that the four storey street wall height to the New South Head Road frontage shown on p 33 of the Strategy to the south west of Cross Street also continues around the corner into Cross Street. The five storey street wall height to the west of the subject site is depicted directly opposite the four storey street wall height. The two would be seen together. However, instead of nominating a four storey street wall height to the west of the site, the Strategy nominates the higher street wall height of five storeys.
Taken together, I do not accept that a conclusion can be drawn that the Strategy proceeds on the false assumption of flat earth in Double Bay. The Strategy would appear to account for the fall in land towards Cross Lane, which I note runs alongside the undergrounded Jamberoo Creek - itself a cue as to the low point in the local area.
Neither do I accept the reasons advanced by Mr McMahon at [43] that would lessen the weight to be given to the Strategy. The site is a review site, and so regardless of what is foreshowed for the remainder of the Double Bay centre, the site would appear to be squarely within to the Strategy. Secondly, the amendment to the Strategy directed by the Council in its resolution at the time has no effect on the preferred built form foreshadowed on the subject site as it directs the amendment to be equivalent to that proposed on the site.
I also reject the submission that failure to publicly progress the Strategy, combined with a change in individual Councillors at the last local government elections are reasons to infer a reversal of previous decisions of Council to progress the Strategy. As I understand Council's submission, any inaction by Council since its decision in November 2023 should not only be taken to be a lack of action, but might also infer strategic avoidance of action that would progress an outcome that may not be desired by some.
On the basis of the above, I consider the proposed development to be consistent with the desired future character of the area in which it is located when the consistency with the WDCP and the future foreshadowed by the Strategy are taken into account.
The neighbourhood or area in which the site is located must be, in my assessment, greater than that defined by just 5 buildings on the western site of New South Head Road, east of Cross Street, but it is not so broad of ill-defined as the entirety of the Double Bay centre that is zoned E1. Those buildings in the E1 zone east of Cross Street do not present so very differently from those in the R3 zone to the east, notwithstanding ground floor retail and footpath awnings. The awnings merely lend weight to the proposition that the site acts to transition from the built form on New South Head Road south west of Cross Street, and the residential zoned land that extends to William Street at the eastern most point of the block.
In short, I accept Mr Karavanas' alternative reading of the relevant neighbourhood or area being as an extension of New South Head Road.
Accordingly, I am satisfied that the Applicant has demonstrated that compliance with the Height standard and FSR standard is unreasonable or unnecessary because the objectives at cll 4.3(1)(a) and 4.4(1)(b) of the WLEP that seek consistency with the desired future character of the neighbourhood or area is achieved, notwithstanding the exceedance.
Turning to the environmental planning grounds, I have already stated my finding that the proposal is consistent with the desired future character sought by the Strategy. I accept consistency with the Strategy, demonstrated through the consistency with its context, is an environmental planning ground.
I also accept that consistency with the E1 Local Centre zone is an environmental planning ground, and while the urban design benefits summarised at [68(5)] may, on first blush, appear to argue the benefits of the development as a whole, I accept that an aspect of the development that contravenes the height and FSR standard is the lower ground floor.
This area of the proposal includes gross floor area that serves to activate an area of Double Bay identified as potential public space in the form of a new plaza and new urban park, and where the Strategy foreshadows a secondary active retail frontage, which would appear to be proffered by the development.
As I am satisfied that the Applicant has demonstrated that compliance with the height and FSR standard is unreasonable or unnecessary, and that there are sufficient environmental planning grounds to justify the contravention, I find the Height Request and FSR Request should be upheld.

Other provisions of the Woollahra Local Environmental Plan 2015

The site is identified as flood affected, and so the provisions of cl 5.21 of the WLEP apply. On the basis of the Flood Risk Management Report prepared by Civil and Stormwater Engineers (C&S Engineers) dated December 2023, which provides an assessment against those matters about which the Court must be satisfied at cl 5.21(2) of the WLEP, I am so satisfied. In particular, I note the flood behaviour and flood function are addressed, with a portion of the site located in the Medium Flood Risk Precinct according to Part E2.3.4 of the WDCP. Flood levels have been identified for Cross Lane and for New South Head Road, and flood protection measures are proposed, including self-closing barriers and manual floodgates. The evacuation of people in the event of flood, and measures to manage risk to life in the event of flood are addressed by a Flood Protection Plan and Emergency Evacuation Plan in a manner that I consider appropriate.
The site is located on what appears to be the boundary between Class 2 and Class 5 acid sulfate soils, and excavation is proposed to a level greater than 6m below AHD. On the basis of the Acid Sulfate Soil Management Plan prepared by Crozier Geotechnical Consultants dated 23 January 2025, that recommends additional geotechnical investigation, and general terms of approval issued by Water NSW that are incorporated within the agreed without prejudice conditions of consent, I accept that the requirements of cl 6.1 of the WLEP are met.
Having had regard to the Geotechnical and Hydrogeological Assessment prepared by Crozier dated 22 January 2023 (Exhibit A, Tab 8), the addendum of the same author dated 21 January 2025 (Exhibit C, Tab 4), the stormwater concept plans prepared by C&S Engineers (Exhibit B, Tab B) and letter by the same author dated 30 July 2024 (Exhibit B, Tab L), and the conclusions and recommendation of the Aboriginal Heritage Due Diligence Assessment Report prepared by Danny O'Brien dated February 2024, I consider those matters at cl 6.2(3) of the WLEP in respect of earthworks to be adequately addressed.

The design of residential apartment development

As the proposed development is residential apartment development, the Court is required by s 147 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) to consider the quality of the design of the development, evaluated in accordance with the design principles at Sch 9.
I am assisted in so doing by a statement dated 4 October 2024 and prepared in accordance with s 29 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) that attests Mr Brian Meyerson (Arch Reg No. 4175) directed the design of the proposal, and sets out the means by which the design principles have been applied in the proposed development, and how the objectives in Parts 3 and 4 of the ADG are addressed.
On the basis of the statement, I am satisfied the development as proposed meets the requirements set out in s 148 of the Housing SEPP.
I do, however, note that Mr Meyerson's statement relies on his designation as an architect under the Architects Act 1921. This is an obvious error given its repeal at the commencement of the Architects Act 2003, under which Mr Meyerson is registered, according to the register published by the Architects Registration Board, and publicly available at www.architects.nsw.gov.au.
It is also relevant to note the provisions at s 47 of the Housing SEPP that requires a consent authority or, in this case, the Court exercising the functions and discretions of the consent authority, to take into account the Guidelines for the Retention of Existing Affordable Rental Housing. An Affordable Rental Housing Report prepared by GSA Planning dated October 2024 (Exhibit B, Tab I) concludes there is comparable accommodation in a similar location, below the median rental costs for one an three bedroom units in the local government area.
I note Council does not contend otherwise and makes no submissions in that regard.

State Environmental Planning Policy (Transport and Infrastructure) 2021

As the site has a frontage to New South Head Road, being a classified road, ss 2.118 and 2.119 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP) apply. The proposal was notified to Transport for NSW and a response was received 14 February 2024 (Exhibit 4, folio 422). General Terms of Approval, provided by Transport for NSW, are incorporated in the agreed conditions of consent.
Vehicle access to the site is proposed via Cross Lane, that I regard to be practicable and safe within the terms of s 2.119(2)(a) of the Infrastructure SEPP, and to safeguard the safety, efficiency and ongoing operation of New South Head Road without adverse affect of the sort at subs (2)(b).
Measures contained in the Acoustic Specification, prepared by Pulse White Noise Acoustics dated 20 January 2025, and cited in the agreed conditions of consent, satisfy me that the development includes measures to ameliorate potential traffic noise within the site arising from vehicle movements on New South Head Road, in accordance with s 2.119(2)(c) of the Infrastructure SEPP.

Water Management Act

The Proposed Development is integrated development pursuant to s 4.46 of the EPA Act as a Water Supply Work Approval is required under the Water Management Act 2000. Section 4.47(3) provides that a consent must be consistent with the general terms of approval of an approval body. Conditions detailing the general terms of approval, issued by Water NSW on 15 February 2024, are incorporated in the agreed conditions of consent.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

The site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map. As such, Pt 6.2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies.
Section 6.6 of the Biodiversity SEPP precludes the grant of consent unless the Respondent council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised.
A Stormwater Design Statement prepared by C&S Engineers dated 29 January 2025 sets out water quality measures that have been modelled using MUSIC software, that I am satisfied are appropriate for treatment and control of stormwater run-off. Stormwater run-off generated on the site will be directed through filtration devices before connecting to the public drainage system. MUSIC modelling demonstrates a reduction in pollutants such that the water quality entering the waterway will have a neutral or beneficial effect. Next, I accept the Suspended WSUD Tank detailed in the Stormwater Plans prepared by C&S Engineers has the effect of detaining stormwater and I accept the post development impervious area is not greater than the pre-development impervious area, and so the impact on water flow in a natural waterbody is minimised.
For similar reasons I have also considered those matters at s 6.7 of the Biodiversity SEPP and am satisfied, there will be no direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation to a minimum, and no adverse impact on aquatic reserves, or in terms of erosion.
Neither will the proposed development have an impact on recreational land uses or access to public land, in terms set out in s 6.9 of the Biodiversity SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

I have considered whether the land is contaminated in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. On the basis of the recommendations made in the Preliminary Site Investigation prepared by Environmental Geoscience dated 10 May 2023 (Exhibit A, Tab 22), and the sample analysis set out in the Detailed Site Investigation of the same author dated 23 July 2024 (Exhibit B, Tab J), I conclude it is not, and that the site is suitable for the development proposed.

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

The application is accompanied by a BASIX certificate (Cert No. BSX-23267M_02 prepared by Firstyle Homes Pty Limited and dated 24 January 2025) in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP).
An embodied energy report is a part of the BASIX Certificate, such that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

Orders

The Court orders that: 1. The appeal is upheld. 2. Development application DA28/2024/1 for the demolition of three buildings and the construction of a new part five, part six-storey shop top housing development with ground and first floor retail, twelve residential apartments, basement parking and associated landscaping on five lots legally identified as Lots 4-9 in DP 14000, at 426-440 New South Head Road Double Bay, is determined by the grant of consent, subject to conditions of consent at Annexure A. 3. All exhibits are returned, except for Exhibits A, B and C.

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: 26 February 2025

At a glance

Court

Decision date

Source

Judgment (18 paragraphs)

Parties

Cases Cited (4)