Reid v Woollahra Municipal Council

The height is exceeded

1. A written request authored by GSA Planning in accordance with cl 4.6 of the WLEP accompanies the DA as amended, dated February 2024.
2. The written request identifies an exceedance of the height standard by the existing building on the site of 5.9m and a reduced exceedance of 5.62m by the proposal now before the Court.
3. The written request states that requiring compliance with the height standard is unreasonable or unnecessary in the circumstances of this case as the proposal achieves the objectives of the height standard notwithstanding the non-compliance with the height standard.
4. The objectives of the height standard 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.
5. The written request asserts consistency with the objectives above for reasons summarised as follows: 1. In respect of objective (a), the desired future character with which heights should be consistent is understood in terms set out in Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 where the desired future character is shaped not only by the provisions of the WLEP, but also approved development that contravenes the development standard. Assessment of the proposal against the height of adjoining development at Nos 55 and 53 New Beach Road demonstrates consistency, and when considered against the natural ground level in the area, is virtually compliant. Assessment against the objectives for development in the Darling Point Precinct, at Part B1 of the Woollahra Development Control Plan 2015 (WDCP), likewise demonstrates these objectives are achieved. 2. In respect of objective (b), the height standard applicable to the site permits a height of 10.5m for dwelling houses, adjacent to a zone in which a height of 13.5m applies, and where the proposal is below the height of Nos 53 and 55 which adjoin. 3. In respect of objective (c), the proposal imposes no additional shadow to neighbouring private open space for a period of 6 hours, and increases solar access which can be said to minimise loss of solar access. 4. In respect of objective (d), the assessment of views identifies no impact on properties nearby including the properties located at a higher level behind the subject site at No 11 Yarranabbe Road. Likewise, privacy impacts are minimised by there being only highlight windows, or windows to non-habitable rooms within the height exceedance, and solar access is also minimised for reasons stated above. Finally, the degree of visual impact within the area of the exceedance results largely from an existing area of excavation that causes a 'step down' in the height plane. When the built form is understood alongside adjoining properties, the proposal is lower. 5. In respect of objective (e), the proposal will protect the public views of the harbour by reducing the overall height of development on the site in the vicinity of a public view corridor obtained from Yarranabbe Road to the rear of the site.
6. Next the written request advances environmental planning grounds it asserts are sufficient to justify the contravention of the standard. These grounds include: 1. The existing excavated topography results in an artificial ground level that does not reflect the intent of the height standard, evidenced by the appropriate visual relationship between the proposed built form and existing adjoining development. To require strict compliance would be to require the removal of two storeys that would be much lower than adjoining development. 2. The proposal is consistent with the character of surrounding development and with the desired future character of the area in terms understood in Initial Action Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1097, in which the contravention of a standard was deemed an environmental planning ground where such departure created opportunities to achieve a good design outcome in context with the form of the immediate built environment. 3. The proposal is lower in height than the existing built form, will present as a two storey form from the rear and steps down the site with the sloped topography.
7. Finally, the written request asserts consistency with the objectives of the zone, at [13], because the development retains the dual occupancy use so that housing needs of the community are provided for in the R3 zone, that itself provides a degree of variety in housing types, and where the bulk and scale of the proposal is consistent with the desired future character of the neighbourhood.
8. I note here that the Respondent is satisfied that the written request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the WLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development in the R3 Medium Density Residential Zone.
9. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the WLEP.
10. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the height development standard under cl 4.3 is justified.
11. I am satisfied under cl 4.6(4) that the height request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development within the R3 Medium Density Residential Zone, for the reasons given in the request, summarised above.
12. In forming this opinion of satisfaction, I accept that the proposed development displays a built form that is consistent with existing buildings either side, and with similar if not identical presentation to the street frontage when viewed from New Beach Road. To the extent that the proposal differs from those buildings either side, the proposed development does not reach the height of those adjoining buildings.
13. I have also considered whether the 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, pursuant to cl 4.6(5) of the WLEP and I find no grounds on which the Court should not uphold the height request.
14. The proposal is for dual occupancy development that is permitted, by cl 4.1A of the WLEP, on site with an area that is equal to or greater than 460m2. As the site has an area of 668.8m2, the proposal complies with the minimum lot size for dual occupancy development.
15. The site is identified within an area of Class 5 Acid Sulfate Soils (ASS), and is within 500m of land identified as Class 2 ASS. On the basis of the conclusion reached in the Preliminary ASS Assessment prepared by JK Environments dated 10 May 2024 (ASS Assessment), that although the western portion of the site is below 5m AHD, the proposed development works will not involve lowering the watertable below 1m AHD on adjacent Class 2 land. This is because the excavation proposed at the front of the site is shallow and is not expected to encounter groundwater when seepage levels recorded in boreholes are considered. As such, the ASS Assessment concludes an ASS Management Plan is not required.
16. The proposed development includes substantial excavation that is the subject of mandatory consideration in accordance with cl 6.2 of the WLEP, and subject to certain provisions at Part B3.4 of the WDCP. Planning experts engaged by the parties to assist the Court agree in a joint expert report filed with the Court on 21 May 2024, that the reduced volume of excavation is now reasonable, notwithstanding the volume exceeding the excavation volume control at Part B3.4 of the WDCP, Control C1.
17. I have also considered the following plans and other documents, on the basis of which I have formed an opinion that those matters at cl 6.2(3) of the WLEP have been adequately addressed: 1. Stormwater Services Plans, prepared by Partridge dated February 2024; 2. Geotechnical Investigation Report prepared by JK Geotechnics dated 6 February 2024; 3. Structural Report and Construction Methodology Statement prepared by Partridge dated 7 February 2024;
18. Additionally, I note agreed conditions of consent address geotechnical and hydrogeological investigation, ground anchors, vibration monitoring, support for adjoining land and buildings, and the like.

[2019] NSWLEC 1097