Prismena Properties Pty Ltd v Woollahra Municipal Council

Land and Environment Court (NSW)|2020-10-09

Judgment

COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 ('EPA Act') against Woollahra Local Planning Panel's refusal of development application no. 458/2017 ('DA') for a residential flat building and associated work at 37 Carlotta Road, Double Bay, legally described as Lot 26 in DP9421 ('site').

Proposed development

The DA, with modifications incorporated into amending plans, seeks consent for demolition of the existing dwelling house on the site and the construction of a residential flat building ('RFB') containing: 3 x 3 bedroom units, basement car parking for seven vehicles with a turn table to assist with vehicle movements, landscaping and associated development.

Site and context

I mostly rely on Council's Amended Statement of Environmental Effects ('Ex 1') for the descriptive material which follows.
The site is near rectangular in shape with a northern side boundary of 41.01m and southern side boundary measuring 42.67m. A front boundary to Carlotta Road measures 15.24m and a rear western combined boundary measuring 15.39m. The total site area is 638.6m2. The site slopes away from the street to the rear boundary, significantly, falling about 14.3m. The cross-fall at the street boundary is reasonably level.
The site is zoned R3 Medium Density Residential under the Woollahra Local Environmental Plan 2014 ('WLEP'). RFBs are permissible with development consent in the R3 Medium Density Residential zone under WLEP, along with Dual Occupancy.
A dwelling house occupies the property to the immediate north and a large and relatively newly constructed dual occupancy is to the immediate south. The Double Bay Bowling Club is below the site to the immediate west. Also to the near west, the site overlooks some residential properties fronting Glendon Road.
The western side of Carlotta Road and Glendon Road comprises mostly dwelling houses whilst there are numerous contemporary RFBs on the eastern side of Carlotta Road.
The site is located within the Bellevue Hill North precinct as set out in Woollahra Development Control Plan 2015 ('WDCP2015'). The Bellevue Hill North precinct is an established residential area characterised by one to three storey dwelling houses and RFBs set within steep winding streets.

Hearing proceedings

Proceedings were conducted under the guidance of the Court's COVID-19 Pandemic Arrangements Policy, issued 1 July 2020. More particularly, the hearing was conducted as a virtual court room using the Microsoft Teams platform. As a consequence of the site context and issues raised, in this instance, I decided it would be appropriate to conduct a restricted inspection of the site and context. There was limited attendance, and social distancing was employed.

Contentions

The Court's Conference of Expert Witnesses Policy identifies as an objective of such joint conferences the identification of the "real issues in dispute". In this instance, the planning experts appointed by the parties (G Karavanas for the Applicant and B Daintry for Council) indicated that the real issues could be sensibly grouped into two.
The first was suggested to be "adequacy of the clause 4.6 submission" (Joint Expert Town Planning Report ('Ex 3'), par 23(a)). WLEP prescribes a minimum lot size development standard of 700m2 for RFB development which, given the site area is 638.6m2, this proposal contravenes. Clause 4.6 of WLEP opens the door to contravention of this standard provided certain jurisdictional barriers are overcome, including provision of an adequate written request seeking to justify the contravention. A determination on the adequacy of the cl 4.6 written request was seen by the experts to necessarily involve evaluation of other contentions raised in Ex 1 relating to: zone objectives, desired future character, the objectives of the key development standard pertinent to the dispute (ie minimum lot size for RFBs) and residential density. While the experts' reference was to the adequacy of the cl 4.6 written request, I would see the point as better understood to relate to the jurisdictional barriers to consenting to a contravening development (at cl 4.6 of WLEP) in toto (see below when the development standard contravention is considered).
The second issue was suggested to be the development's "bulk and scale and associated impacts" (Ex 3 par 23(b)).
The approach I follow in structuring this judgment is to generally follow the pathway suggested by the experts. There are two sequential sections dealing in turn with: (1) the development standard contravention and (2) the combined issues of bulk, scale and amenity impacts. I add the topic of "size of the site" to this second issue given its emphasis in Council's submissions and expert evidence. In the judgement I include a third section ("other issues") to address other relevant points raised in Council's closing submissions.

Development standard contravention

Clause 4.1A of WLEP prescribes a minimum lot size development standard of 700m2 for RFB development which the proposal would contravene by 61.4sqm (or some 8.8%).

Statutory setting

The Applicant is seeking an exception for the contravention of the development standard under cl 4.6(2) of the WLEP which provides relevantly as follows: (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 ...
The permissive power in cl 4.6(2) is subject to the restrictions in subcll 4.6(3) and (4): (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 Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning 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 Planning Secretary before granting concurrence.
Thus, the Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the permissive power under cl 4.6(2) to grant development consent notwithstanding a development standard contravention. The first opinion is in regard to a written request from the Applicant seeking to justify the contravention of the development standard and, specifically, whether it has adequately addressed the two matters required to be demonstrated at cl 4.6(3). The second opinion requires me to make my own finding of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.
In respect of cl 4.6(4)(b), the Court is able to grant consent without the concurrence of the Planning Secretary under to s39(6) of the Land and Environment Court Act 1979 ('LEC Act'). The Court should still consider the matters in clause 4.6(5) and I give attention to this below.
As indicated above, cl 4.6(2) was opened up by submission of a written request seeking to justify the contravention. The written request was prepared on behalf of the Applicant by GSA Planning and is titled Further Revised Clause 4.6 Exceptions to Development Standards - Minimum Lot Size (version 2). It was tendered into evidence as Exhibit E ('Ex E').

Whether compliance with the development standard is unreasonable and unnecessary in the circumstances of the case

Mindful of cl 4.6(3)(a) of WLEP, Ex E initially seeks to demonstrate that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case. It does so mindful of Preston CJ's finding in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 ('Wehbe'). The written request uses the first Wehbe "way", seeking to show how, otherwise, the development achieves the objectives of cl 4.1A of WLEP, notwithstanding the contravention.
The nominated objectives of cl 4.1A is as follows: The objective of this clause is to achieve planned residential density in certain zones consistent with the desired future character of the neighbourhood.
Ex E separates the two central concepts referred to in this objective and argues that in assessing whether the clause objective is achieved (ie notwithstanding the contravention) the "focus" should be on "achieving the desired future character" rather than on "achieving 'planned residential density'" (p5). The submission is that planned residential density, as conceived in the objective, "goes to regulation and cannot be satisfied". The findings of Preston CJ in Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 ('Baron') at [57], are used to support this argument.
Ex E goes on to consider the density more conceptually, drawing a distinction between floor space and number of dwellings as different ways to conceive density, stating as follows (p 5): "Notwithstanding, the 'density' control in clause 4.1A, clause 4.6 applies to permit flexibility in the application of the control. The density control is crude in that it only identifies number of dwellings rather than number of bedrooms or floor space to control the true density of 'occupants'. The proposal seeks consent for 3 x 3 bedroom units. There is no floor space control in the LEP that applies to dwelling houses or dual occupancies. Accordingly, a dual occupancy development on the site could achieve a similar 'density' to a residential flat building when assessed under the applicable development standards in the LEP."
Ex E then considers desired future character and the proposal's consistency with it. It is indicated that desired future character is not defined in the WLEP. Ex E submits that desired future character is derived from relevant WLEP provisions, as follows: zoning, zone objectives, land use table, development standards (including cl 4.1 (minimum subdivision lot size), cl 4.1A (minimum lot size for dual occupancies, manor houses, multi dwelling housing and RFBs), cl 4.1B (exceptions to minimum subdivision lot sizes for certain residential development), cl 4.3 (height of buildings) which prescribes a maximum height of 9.5m, cl 4.4 (floor space ratio ('FSR')) which prescribes a maximum FSR of 0.65:1.
It is in indicated (and not disputed by Council - Ex 3, par 116) that, relevantly, the proposal complies with the height and FSR standards. Ex E then indicates that the various lot size standards would "result in a mix of dwelling typologies on different size lots, resulting in an eclectic desired future character and built form and a promotion of larger dwellings given the absence of an FSR standard for that typology" (p5). The theme of eclecticism is also pursued with the suggestion that the R3 Medium Density zone permits a wide range of uses and built form. Ex E find that the desired future character referenced in cl 4.1A is one of "an eclectic mix of building typologies with the built form of residential flat buildings constrained by the envelope controls of the FSR and height standards, to which the proposal complies" (p6).
Ex E also has regard to desired future character as articulated in Section B1.8 of WDCP - Bellevue Hill North, the applicable precinct in this case. The objectives are listed, and the proposal measured up against them individually.
In regard to the first Wehbe way, Ex E concludes that (p8): "The proposal is largely compliant with all requirements for residential flat buildings in the area. The skilful design demonstrates a residential flat building can be accommodated on a lot of this size without significant loss of amenity to nearby residents, or to the detriment of the local character. In our opinion, the proposal will be compatible in size and scale with the nearby residential flat buildings on Carlotta Road and will be consistent with the desired future character of the neighbourhood."

Consideration

The decision in regard to satisfaction with the Applicant 's written request, under cl 4.6(4)(a)(i), is entirely my own. However, in coming to my conclusions in regard to the written request and the application of cl 4.6(2) more generally, I have considered the critical contributions of Mr Daintry and the Council's written closing submissions (both in summarising Mr Daintry's views and of their own right) as a practically useful counterpoint. I start with a presentation of my understanding of the key aspects of what here I will call the Council submissions, before drawing out conclusions.

Council submissions

The critical perspectives involved two themes. The first was that the clause objective, and the test surrounding its achievement, were misconstrued in Ex E. The second was concerned about the quality of the technical planning arguments.

Misinterpretation of objective of clause 4.1A and how it may be achieved

Were a written request to misconstrue the relevant clause objective there would be an obvious difficulty in regard to its "adequacy". Council argued that Ex E doesn't appreciate what the standard is seeking to achieve. I understood Council to acknowledge the clause objective as concerned with providing a variety of dwelling types in the R3 zone, in alignment with Ex E. But there is a step beyond this embodied in the clause objective according to Council. The submission seemed to me to be that the clause is seeking to achieve this "variety" in a particular type of way. That is, by purposively pivoting the permissible form of development on the basis of lot size. "The application of the minimum lot size development standard achieves a variety of housing types in two ways. Firstly the Development Standard ensures that lots under 700 square metres are able to provide residential development consisting of dwelling houses and dual occupancies. Secondly, it provides that RFBs and other development which increase dwelling density beyond two dwellings, must not be provided on lots with an area of less than 700 square metres. The effect of the development standard is to ensure that lots under 700 square metres remain available for the provision of developments with a dwelling density of two or less."
It is suggested that the area around Carlotta Street and the site has a variety of lot sizes "such that the variety of housing types can be achieved, through compliance with the Development Standard" (Respondent's Closing Submission ('RCS') par 74).
Ex E's reference to a similarity between the subject clause and the applicable clause in Baron ('objective (b)') was also seen to be in error: "Objective (b) in Baron informed a development standard for floor space ratio. That development standard had an entirely different purpose to the minimum lot size standard the subject of clause 4.1A of WLEP. Objective (b) in Baron was also not limited as to an area where objective 4.1A(1) is limited to an area being that of the "neighbourhood"."
In what I would also describe as a suggested misconstruction, Council also suggested that Ex E argued that the only way to achieve the objective of the standard was to breach it (pars 66, 70). An argument seen as "absurd" by the Chief Judge in Wehbe at [63]. Council explained how in Wehbe, a written request (or its equivalent of the time) argued that a lot size clause objective in a Local Environmental Plan , which was in part "to create more varied allotment sizes", could itself be used to argue departures from the minimum lot size controls established by the clause itself. Preston CJ found this objective as "descriptive of the result achieved by the clause itself".

Planning or technical argument failings

Council also raised concern with the quality of the supportive technical arguments presented in Ex E in the face of the jurisdictional test that a consent authority must be satisfied that a written request "adequately demonstrates" (in reference to cl 4.6(4)(a)) that compliance is "unreasonable or unnecessary" (quoting from cl 4.6(3)(a)). Ex E does not provide a sufficiently robust or detailed explanation as to how the development "ensures that the planned residential density will be achieved, consistent with the desired future character of the neighbourhood". According to Council, the Applicant relies on a simple assertion that it does (par 62), in the face of Mr Daintry's evidence that the proposal is entirely inconsistent with the desired future character of the neighbourhood.

Finding

I am satisfied that Ex E has adequately demonstrated that the development achieves the objectives of cl 4.1A of WLEP, notwithstanding the contravention. My initial commentary makes some comparisons with Council's submissions. Then I draw out my findings.
First, I do not see that Ex E has misconstrued cl 4.1A or how it might be interpreted. There are pertinent parallels between cl 4.1A and the findings in regard to objective (b) in Baron. I agree with Council that there is another layer of complexity in cl 4.1A(1) compared to objective (b) in Baron. But I find two concerns with Council's arguments on the implications of this complexity. First, is in regard to what I have called the pivot point around 700m2 minimum lot sizes (as an exclusion point for RFBs to in a sense allow for the delivery of the the variety of housing types sought to be achieved). Were this 700m2 factor be a kind of fixture (in the sense that a variance of say 6.8% were disallowed), it would be, as argued in Ex E, a point of regulation. Achievement of that regulation cannot be seen as the end to be achieved by the clause (Baron [49]). The ultimate objective is achievement of a certain desired future character as essentially prescribed by WLEP controls, with cl 4.6 to provide flexibility in regard to such controls if jurisdictional pre-requisites were overcome. Mindful of the objectives of cl 4.6, and the facultative function generally of the clause, it is too fine an exclusion to say that the objective of providing opportunity for the provision of developments with a dwelling density of two or less must turn more or less precisely around the figure of 700m2. My second concern, on this point of Council, is that its construction of the finer objective behind the control (ie that the objective of providing a variety of dwelling types in the R3 zone is sought in "a particular type of way" - through in a sense leaving space for dwelling houses and dual occupancies) is only one possible construction. While it may be, it is not clear to me that this is, in fact, the finer objective to cl 4.1A. It assumes a quite linear relationship between housing form and lot area that may not represent reality. It does not account for alternatives such as the 700m2 control on RFBs (and the other lot area controls relating to different housing forms) may just be concerned with ensuring that there is sufficient space to accommodate development of desired character.
Second, I do not see that Ex E has misconstrued how cl 4.1A might be satisfied. I agree with Council that it is not enough to say that cl 4.1A is merely concerned with establishing that there be an eclectic mix of building types, and because the proposal fits that eclecticism the clause is satisfied. But Ex E went beyond the argument that the only way to achieve the objective of the standard was to breach it. As explained below, Ex E argued why and how the development would be consistent with the desired future character of the neighbourhood. In respect of Council's submission, this is a different approach than that found wanting by the Chief Judge in Wehbe.
Third, and following on from the above, Ex E goes beyond assertion and relies on the other compliant aspects of the development, in particular compliance with FSR and height controls, to demonstrate that development is consistent with the desired future character. I do not find that the arguments of Mr Daintry are persuasive in the Council's suggestion that the proposal is entirely inconsistent with the desired future character. The reasoning for this is outlined in the analysis of the bulk, scale and amenity impacts arguments below.
My finding of satisfaction that Ex E has adequately demonstrated that the development achieves the objectives of cl 4.1A of WLEP (achievement of planned residential density in the R3 zone consistent with the desired future character of the neighbourhood) are based on two key points. First, Ex E correctly interprets that the flexibility imbued in cl 4.6 should apply to the minimum lot size control aspects of cl 4.1A. Second, Ex E adequately demonstrates, through definition of the neighbourhood and comparative analysis of the proposal with relevant provisions of WLEP associated with identifying the desired future character, that the development achieves planned residential density in the R3 zone consistent with the desired future character of the neighbourhood.
My finding in regard to the first Wehbe way means there is no need to consider the other arguments in Ex E on whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

Whether there are sufficient environmental planning grounds to justify contravention

There are a number of points proffered in Ex E to demonstrate sufficient environmental planning grounds to justify contravening the standard. These include: (1) the site's topography (sloping away from the street) means an RFB presents to the street no different from other housing forms, (2) there is an institutional development (Rose Bay Bowling Club) rather than residences to the immediate rear (where the visual bulk is more apparent), (3) there is a consistency of bulk and scale with existing adjacent development (relating this to the finding of O'Neill C in Initial Action v Woollahra Municipal Council [2019] NSWLEC 1097 at [42] ('Initial Action'), (4) the suggestion that the aspect that contravenes "does not materially affect the form of the development that is anticipated on the site given that it complies with the FSR and height standards" (Ex E, p 10).
I agree with Ex E that the four points indicated above are sufficient planning grounds to justify contravening the standard. This is because they show how the contravention of the standard does not impair capacity for the proposal to be consistent with desired future character. I see these individual four points as supporting a common theme of Ex E which is that the lot size is appropriate for the development because, with the particular adopted design here on this particular site, the proposal is consistent with the desired future character of the local neighbourhood.
Here I acknowledge the Council's submissions that (RCS, par 84): "…the request impermissibly addresses the Development as a whole by references to controls relating to height, floor space ratio, deep soil landscaping and solar access to neighbouring properties. In doing so, it seeks to prioritise or rank compliance with other standards and controls over compliance with clause 4.1A(2) which is not permissible (Wehbe at [60])."
Wehbe at [59]-[60] rejects an argument claiming conformity with permissible uses under the zoning might take precedence over a development standard: "59 The ground of the revised SEPP 1 objection that bringing conformity with what is said to be the primary planning control of the permissible uses under the zoning should be given precedence over non-compliance with what is said to be the secondary control of the development standard of the minimum allotment size for a subdivision, is also erroneous. 60 Although the power under SEPP 1 is wide (see, for example, Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 203 affirmed (1990) 69 LGRA 201 at 203, 210), it needs to be exercised on the grounds in SEPP 1 relating to the development standard and the circumstances of the case. It does not allow a consent authority to dispense with compliance with a development standard merely in order to bring about conformity with some other planning control. SEPP 1 does not permit the consent authority to rank in order of importance planning controls applicable to the land and the proposed development, and give precedence to other planning controls over the development standard."
My interpretation is that there is not an alignment with Wehbe at [60] here. Achieving the desired future character involves more than meeting a control. It is a nominated aim of WLEP and an objective of the zone as well as the standard itself.
Nor am I convinced by Council's reference to Initial Action (RCS, par 86 et seq), and behind it, the three cases initiated with Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009 ('Four2Five 1') and otherwise involving Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 and Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15]. There are a number of points raised which for me the core of which can be summarised as: (1) written request impermissibly addresses the development as a whole rather than the contravening aspect and why that contravention is justified, (2) that the planning grounds are not particular to the circumstances of this case and could apply equally to any complying development.
To explain why, in this instance, the nominated planning grounds (as synthesised by me above) are valid I can contrast with the findings in Four2Five 1, where Pearson C found (relevantly) at [60]: "The environmental planning grounds identified in the written request are the public benefits arising from the additional housing and employment opportunities ... 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…"
Notwithstanding, and respectfully, that I am not bound by those particular findings of Four2Five 1 in any event, there is explanatory value in drawing out the distinctions. In this case it is the design features of this development in juxtaposition with its setting and the controls which evince the desired future character; that together evidence sufficient planning grounds. That is to say, whereas in Four2Five 1 the written request promoted the benefits of the development as a whole (in that case relating to wider urban planning goals) and the Commissioner believed that "any development (in that case involving a mixed use development) on this site would provide those benefits", in this instance it is the particulars of the development's response, in the face of the contravention, which relates to the planning ground.
On the preceding basis, I am satisfied that the first opinion of satisfaction under cl 4.6(4)(a)(i) is met.

Development in the public interest because of consistency with objectives of the standard and objectives of the zone

The second opinion requires me to make my own direct finding of satisfaction. For the same reasons outlined in the written request I am directly satisfied that the development is consistent with the objectives of the minimum lot size standard applying to RFBs. I am also satisfied that the development is consistent with the R3 Medium Density Residential zone objectives. The zone objectives 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 provide facilities or services to meet the day to day needs of residents. • To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.
Consistent with the first two zone objectives, the proposal would result in three residential apartments, of some individual variety (given the response to the topography setting), in a medium density environment where, presently, a single dwelling exists. In regard to the fourth zone objective, I believe the development is a of height that achieves the desired future character with its compliance with the height of building standard applying under WLEP. The FSR control is also met, which I see as a reasonable indicator of achievement of desired future character with respect to scale. I also rely on my findings below where scale is given further attention. The third objective is not relevant here.
On the preceding basis, I am satisfied that the second opinion of satisfaction under cl 4.6(4)(a)(ii) of WLEP is met.

Concurrence function under cl 4.6(4)(b) of WLEP

Relevantly, in regard to cl 4.6(5) I am satisfied the proposal does not raise any matter of significance for State or regional development. While I note Council's submissions that there is a public benefit in maintaining the development standard, in this instance, because there are nearby parcels of land occupied by single dwellings which are under the 700m2, I am not convinced. The 700m2 minimum lot size control for RFBs is there for a reason, as indicated in the clause objective. Any redevelopment proposal on land contravening the standard at cl 4.1A of WLEP would need to justify that contravention through the normal means and appropriately satisfy the consent authority in the circumstances. If the jurisdictional requirements cannot be satisfied, then the development would not proceed.
The states of satisfaction required by cl 4.6 of the WLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the contravention of the minimum lot area control applying to RFB development.

Bulk and scale and associated impacts, given the site area

Aside the disagreement in regard to the acceptability of the development standard contravention, there was disagreement on the part of the experts in regard to the impacts of the proposal relating to the proposed bulk and scale of the development. There was some acknowledgement on the part of Council that amendments to the proposal had gone some way to addressing these impacts, but the underlying concern was that the land was too small for the development (RCS, par 15). "The Respondent accepts that the DA has been amended in an attempt to address the contentions raised by the Respondent and neighbouring property owners but contends that the amendments have not addressed the essential element of the concerns of the Respondent and the adjoining land owners, that being that the Land is too small for the Development."
It is interesting to note the agreed commentary that (Ex 3, par 23(b)): "Rather perversely, RFBs benefit from less onerous LEP standards and DCP Controls than a dwelling house or dual occupancy."
In turn, the dispute between the experts was not in regard to whether the proposal complied with relevant RFB controls (see agreements at s 8.2.1 of Ex 3), but how the development measured up against the controls otherwise applying to houses or dual occupancies. In regard to this, the experts submitted as follows (Ex 3 par 133) "We agree that if the clause 4.6 is accepted that the bulk and scale is generally within the envelop defined by the DCP for a house or dual occupancy but for: a. the proposal breaches the 1.9m side setback (it adopts a 1.5m setback that would apply to an RFB on a site 700m2 or greater), and b. has a floor plate 133.61m2 greater than the DCP floorplate for a house or dual occupancy on the site."
Mr Daintry (quotes as 'BD' below) also opines that (Ex 3, paragraphs as numbered): "124. BD is of the opinion that the bulk and scale or its impacts are not equivalent to a DCP compliant house or dual occupancy give the exceedance of the floor plate control primarily cause by a level 3 parking which is not contained within a basement as defined by the LEP or DCP and the 1.5m setback. 125. The proposal breaches clause B3.6 C5 "Development involving three or more dwellings provide basement parking". This control applies to the subject proposal. 126. The adoption of a 1.5m rather than 1.9m side setback with encroachments upon the incline plan adds to the bulk and scale. 127. The impacts are primarily due to the site being too small to contain 3 apartments and required parking being implemented not in a basement but within Level 3 and this goes to the suitability of the site for the proposal under section 4.15(1)(c) of the EPA Act. 128. The DCP's floor plate objectives, in a comparative sense (Annexure 11) demonstrates that the bulk and scale is larger than would be achieved by compliance with the controls intended to apply to a site smaller than 700m2. 129. The objectives of the floorplate control "O2 To ensure the size and location of buildings allow for the sharing of views and minimise impact on the privacy and sunlight access to neighbouring properties." Will not be achieved to the extent that compliance with the controls would achieve and there should be no expectation that all of the building envelope be filled by built form. 130. BD does not agree that this small and steep site is suitable for an RFB development."
Mr Daintry concludes that, based on comparative work shown in Annexure 11 of the joint report, the proposal's bulk and scale is in excess of what is reasonable for the site (Ex 3, par 135).
Mr Karavanas disagrees. His reasoning comes into the consideration below.

Consideration

Here I note the Applicant's attention to legislative provisions relating LEPs and Development Control Plans ('DCP') at ss 3.43 and 4.15(3A) of the EPA Act. One effect of these provisions is that DCP's not apply more onerous standards than LEPs in respect to an aspect of a development. Another is that if DCP provisions set standards with respect to an aspect of a development then a consent authority is not to require more onerous standards with respect to that aspect.
Even if I were to entertain the DCP provisions in regard to housing and dual occupancy development, it is reasonable to expect Council's concerns about bulk and scale and overall site suitability (given the site area) to manifest in actual impacts, as would be experienced by neighbours or otherwise in the public domain.
However, in this instance, and on the basis of site inspections from neighbouring properties, and in the street, I do not accept that there will be any unreasonable impacts given the physical setting. I accept the evidence of Mr Karavanas that, with the design as finally before the Court (including the changes to landscaping and the rear terracing facing Glendon Road), the departure from WDCP side setback and wall height controls (applying to dwellings and dual occupancy development) would not result in material visual or amenity impacts upon neighbours (Ex 3, par 122).
If I continue and consider Mr Daintry's reference to the floor plate control at section B3.3 of WDCP (again applying to dwellings and dual occupancy development rather than RFBs and considerably at odds with the DCP's FSR control), I see the proposal as generally aligned, or not at odds with the relevant objectives. The most relevant to mention is at O2 ("To ensure the size and location of buildings allow for the sharing of views and minimise impact on the privacy and sunlight access to neighbouring properties"), which the proposal accommodates.

Public submissions

Mindful of s 4.15(1)(d) of the EPA Act, I have read and given consideration to submissions from objectors (Ex 4). It seems to me the amenity and other local character compatibility concerns raised by objectors are adequately addressed, noting the amendments to the proposed development.
The question of the extent of excavation raised in neighbour submissions warrants direct attention. I also raised the question myself at the commencement of the hearing.
One of the nominated aims of WLEP is "minimising excavation and manage impacts". A list of considerations in regard to earthworks are also provided at cl 6.2 of the WLEP. The more detailed policy standards are at Control C4 in Part B3.4 of WDCP. There is also a related reference in the desired future character objectives for the Bellevue Hill North Precinct (objective 6 - "To design and site buildings to respond to the topography and minimise cut and fill").
Clearly, there is a significant breach of the numerical control relating to excavation provided at Control C4. In the circumstances, there were no objections raised by Council's development engineer in regard to the extent of excavation at the point of commencement of the hearing, subject to the inclusion of various detailed conditions (including Condition D2 on dilapidation report requirements in regard to existing buildings), subsequently taken up in without prejudice conditions. I note the additional material provided by the Applicant in regard to excavation particulars and the further confirmation from Council's internal experts that the proposal is considered acceptable in regard to cl 6.2 of WLEP and Part B3.4 of WDCP (Ex 5). In turn I accept that reasonable expert attention has been given to the objector's concerns in regard to excavation, and that the proposal is satisfactory having a mind to the intended conditions.

Cross-referencing the contentions

Having worked through the contentions raised by Council, as well as the commentary in regard to each in RCS, I am satisfied that due attention has been given to the fundamental issues in dispute, and that I am in a position to draw final conclusions.

Conclusion

Following on from the above evaluation, the proposed development is acceptable in the circumstances of the case with conditions as agreed between the parties (without prejudice on Council's part).
I note here that leave was granted for a number of plan amendments, and for variation to the cl 4.6 written request, in the course of the proceedings and costs orders were made, with agreement, in regard to aspects of these changes with my orders of 9 October 2020. Further, my orders have already granted leave for the approved architectural and landscape plans, referenced in Condition A.3 at Annexure A, upon which the consent is based.
The orders of the Court are: 1. The Applicant's request pursuant to clause 4.6 of the Woollahra Local Environmental Plan 2014 (in relation to the minimum lot size for residential flat buildings standard at clause 4.1A of the Woollahra Local Environmental Plan 2014), prepared by GSA Planning, filed 7 October 2020 and tendered as Exhibit E in the proceedings, is upheld. 2. The appeal is upheld. 3. Development Application No. 458/2017 for demolition of the existing dwelling house and construction of a residential flat building containing 3 x 3 bedroom units, basement car parking for seven vehicles, landscaping and associated development, at 37 Carlotta Road, Double Bay, legally described as Lot 26 in DP9421, is approved subject to the conditions included at Annexure "A". 4. The exhibits are returned except Exhibits A, D, K, L, M.

Commissioner of the Court Annexure A (686768, pdf) Architectural Plans (2725664, pdf) Landscape Plans (5314073, pdf)

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: 21 January 2021

(2019) 243 LGERA 338

(2007) 156 LGERA 446

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Judgment (23 paragraphs)

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Cases Cited (9)