Roche Group Pty Limited v Woollahra Municipal Council

The Respondent's position on objective (d)

1. According to the Respondent, the import of Ricola in this case is the finding by the Commissioner that consistency with the desired future character is different to demonstrating that impacts of the development have been minimised. In that case the Commissioner found the written request prepared in accordance with cl 4.6 failed as it relied on the change of character in the local area arising from other approvals in the vicinity.
2. In this case, the Respondent does not contend that the proposal is at odds with the desired future character, only that the impact arising from the non-compliance has not been minimised.
3. The impact that would be caused by a development that complies with the height standard is deemed to have minimised impacts on adjoining or nearby properties from disruption of views, as the objectives of a standard presuppose the impact of a complying envelope.
4. Likewise, any development that imposes an impact that is greater than the impacts caused by a compliant height development cannot be said to minimise impacts.
5. To the extent the height request asserts that impacts are minimised, it relies on fictional elements of a hypothetical development to claim a setback of 16m at the uppermost level has been provided.
6. However, the comparative assessment is not to be made between the proposal and a hypothetical alternative, but between the proposal and a development that complies with the height standard as shown by Gray C in Ricola at [98] when the Commissioner noted that the impact created in that case was "one that is not anticipated by the numeric control, as the impact is greater than that of a complying development".
7. Further, to 'minimise' means to 'reduce to the smallest possible amount of degree', which is different to the meaning of 'reducing' which means to 'bring down' or 'lower in degree, intensity'. While the amended application has reduced the built form at the uppermost level, it does not equate to a minimising of the form, or its impacts.
8. Mr Newbold's oral evidence is that a further setback of 8-9m at the uppermost level is required for the treed ridgeline to be obscured by only 10-15%, which would constitute a minimising of the impact on the disruption of views.
9. As for the Draft Planning Strategy, no weight should be given to it as the Council is yet to consider submissions following public exhibition, it has not been adopted, and so is neither imminent or certain.

The objectives of the standard are achieved, notwithstanding the non-compliance

1. For the reasons stated at [42(1)]-[42(3)] above, I accept that the proposed development is of a height that is consistent with the desired future character of the neighbourhood (objective (a)).
2. For the reason advanced by the Applicant at [43], I accept that the proposal establishes a transition in scale between the B2 and R2 zone to the west that protects local amenity (objective b)).
3. For the reasons that follow, I accept that the proposal minimises the loss of solar access to existing buildings and open space (objective (c)), and protects the amenity of the public domain by providing public views of the harbour: 1. In arriving at this opinion of satisfaction, I note that impacts on solar access are not entirely avoided, and that areas of the public domain, existing buildings, and approved developments nearby, will experience periods of overshadowing by the proposal, and by the non-compliance in particular. However, in my view the proposal has taken steps to minimise the impact of the overshadowing. 2. In particular, the western setback of 2.5m at Level 5 depicted in the Midwinter views from the sun at Annexure D of the joint report demonstrates that the departure from the DCP envelope in this respect results in greater solar access to the north eastern corner of 38 Bay Street, and to parts of the public domain between 9am-11am.
4. In respect of objective (e), I accept the setback of the upper levels allows increased view corridors over the site from distant vantage points.
5. I also accept that that the proposed development has minimised the impact of disruption of views, being one of the impacts to be minimised by objective (d) of the height standard.
6. It is helpful at this point to explain that I agree with the Applicant's submission that the view enjoyed from Apartments 7A/B and 7C is more panoramic than that suggested by the photomontages prepared by the Applicant, which primarily focuses on the view directed to the north, and to the treed ridgeline.
7. On the basis of the site view, I accept that the view enjoyed from the apartments takes in the mature canopy of the street trees in Bay Street, the well vegetated slopes of Darling Point to the west, the treed ridgeline of Bellevue Hill and Point Piper to the east, and the treed ridgeline to the distant north.
8. These elements are not only visible from the vantage point of the north facing balconies but are also evident from inside the rooms visited during the onsite view.
9. In this context, the treed ridgeline in the distant northern view forms a component of the view, but a minor one in my view. As a result of the approved development at 55 Bay Street, the land/water interface that is currently enjoyed from Apartment 7A/B is substantially reduced and is removed altogether from the view shed currently enjoyed by Apartment 7C.
10. What is left of the treed ridgeline is a thin sliver on which the proposal imposes a view impact quantified by Mr Newbold at around 40% in Vantage Point 5, and between 18-45% in Vantage Points 1-4.
11. The view that is impacted, when considered within the rubric of Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 ("Tenacity"), is not iconic, and due to the obscuring effect of Nos 28-34 Cross Street and 55 Bay Street, is partial.
12. In answer to the fourth step in Tenacity, the aspect of the proposal that causes the impact is the non-compliance with the height controls. However, contrary to the Respondent's submission, it is not the case that a development that exceeds the numeric height standard should have no greater impact than a complying development. As shown by his Honour Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 ("Initial Action") at [87]: "Clause 4.6 does not directly or indirectly establish a test that the non-compliant development should have a neutral or beneficial effect relative to a compliant development…Compliance with the height development standard might be unreasonable or unnecessary if the non-compliant development achieves this objective of minimising view loss or visual intrusion. It is not necessary…that the non-compliant development have no view loss or less view loss than a compliant development."
13. I do not understand the Commissioner in Ricola to be advancing that any comparison is required. Rather, that any development that imposes an impact beyond that which may reasonably be anticipated of a complying development, must demonstrate by reason of a cl 4.6 written request, the means by which the impact is minimised.
14. The Commissioner found that the written request in Ricola failed to identify the steps taken to minimise the impact beyond that anticipated by the numeric control.
15. In the circumstances of this case, the height request has identified ways in which the impact on the disruption of views has been minimised: 1. The non-compliance at the uppermost level of the proposal has been positioned to the east of the site, associated with a 16m setback and half the GFA of the level below. 2. Positioning the uppermost level to the east has two effects that may be described as minimising: firstly, to set to one side the built form that obscures part of the treed ridgeline currently within the view of the Apartment 7A/B and 7C, and secondly, to locate that portion of built form where it is progressively more concealed behind the built form approved at 28-34 Cross Street, the more the viewer moves to the east, evident in a comparison between Vantage Point 1 and Vantage Point 9 in Annexure B of the height request.
16. While not expressly stated in the height request, but integral to the positioning of the uppermost level in the location stated above, is the relocation of the lift core and stairs that are currently broadly positioned in the centre of the site, but which are to be demolished and relocated. The effect of this is to position the element of greatest non-compliance to the extremity of the view enjoyed from Apartment 7A/B and 7C, and where it is most likely to be obscured as the viewer moves east by the approved development at 28-34 Cross Street.
17. This placement of the greatest height in an area of greatest occlusion when viewed from the apartments satisfies me that the impact on the disruption of views has been minimised and has not merely been reduced, as the Respondent argues.
18. While the proposed development will impact the views currently enjoyed from the apartments, the extent of that disruption from the apartments has been considered and has been minimised by the Applicant. While the development will undoubtedly result in part of the view from the apartments being impacted, I have come to the conclusion, after considering the evidence of the experts and of the view impact assessment, that the impact on the views enjoyed from the apartments, is minor.
19. With respect to Mr Young's submission, I am unable to give any weight to the image relied upon by Mr Young at Annexure 1 as it depicts a hand drawn approximation of the proposal, without also representing the recently approved and compliant developments on Cross Street, and Bay Street.
20. I also accept that the wording of objective (d) places a focus on the disruption of views to those properties that are adjoining or nearby that is unlikely to infer district or distant views such as that currently enjoyed by Mr Young.
21. On these grounds, I am satisfied that the height request demonstrates that compliance with the height standard is unreasonable or unnecessary in accordance with cl 4.6(3)(a) of the WLEP.

There are sufficient environmental planning grounds to justify contravening the development standard

1. Next, the height request advances environmental planning grounds it asserts are sufficient to justify the contravention of the height standard. His Honour Preston CJ explained in Initial Action, at [24] that the environmental planning grounds relied upon must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole.
2. The height request advances four environmental planning grounds, in addition to the compliance it considers to be demonstrated with the objectives of the height standard, and the B2 zone. The four grounds may be summarised as follows: 1. The first ground is that the proposal is consistent with the desired future character of the area, as expressed in both the controls contained in the WLEP and in approvals granted by the Council in the area such as 16-18 Cross Street and 20-26 Cross Street, as expressed by the Commissioner in SJD No 1 and confirmed by his Honour in SJD No 2, and more recently in the approval by the Council of 19-27 Cross Street. 2. Such consistency is an environmental planning ground for the reasons set out by O'Neill C in Initial Action v Woollahra Municipal Council [2019] NSW 1097 at [42]: "I am satisfied that justifying the aspect of the development that contravenes the development standard as creating a consistent scale with neighbouring development can properly be described as an environmental planning ground within the meaning identified by his Honour in Initial Action [23], because the quality and form of the immediate built environment of the development site creates unique opportunities and constraints to achieving a good design outcome (see s 1.3(g) of the EPA Act)." 1. In the circumstances of this case, the objectives of the height standard and the objectives of the B2 zone, read together, seek a height and scale that is consistent with the desired future character of the neighbourhood. 2. The height and scale of the immediate area is defined by six storey buildings at 19-27 Cross Street, 28-34 Cross Street and 45-51 Cross Street. While the proposal exceeds the overall height of these developments, the site is a corner site on which prominence is sought in the height and FSR controls, and where the retention of the majority of the structure results in a floor-to-floor height at ground floor and first floor level that moderately exceeds the heights preferred in Control C4 of Section 5.6.3.2 of the WDCP. 3. The second ground is that the commercial use proposed is consistent with the objectives of the B2 zone to provide employment opportunities, and contribute to daytime activation and vibrancy in Double Bay. In pursuit of that consistency, the height request identifies that applying the preferred floor-to-floor height of 3.4m for commercial buildings on those new floors proposed to be added to the existing height of 3.84m at the first floor contributes to a non-compliance. 4. The third ground is that the non-compliance will not result in unacceptable environmental impacts in terms of solar access, views or privacy for reasons set out at [46], and in Section 5 of the Statement of Environmental Effects (Exhibit A, Tab 18) which I note deals with the assessment of natural environmental impacts and of built environment impacts. 5. The fourth ground is that the proposed development provides a high level of urban design which minimises impacts resulting from the height non-compliance by means of its four-storey street wall, well-articulated facades, setback to upper levels, roof terraces and soft landscaping which has the effect of breaking up the form and reducing the perceived scale. The feasibility of such design features is said to be improved by the non-compliance.
3. For the reasons that follow, I accept that the grounds relied on are environmental planning grounds sufficient to justify the contravening of the standard: 1. I accept that Figure 1, the height plane blanket in Cross Street, and Figure 3, being a streetscape elevation of the northern side of Cross Street, re-produced below, supports the demonstration of a visual consistency in height when considered in context with the massing of existing built form to the north of Cross Street, and with existing and proposed development to the south side. 1. I also accept the environmental planning ground at [89(4)] which states, in effect, that as the development application proposes the retention of a portion of the existing building, the floor-to-floor heights of that retained portion exceed the heights set out at Control C4 of Section 5.6.3.2 of the WDCP, which is 4m for the ground floor, and 3.4m for the storey above where for commercial use. 2. Additionally, the proposal is for commercial uses at all levels of the building and so a floor-to-floor height of 3.4m is adopted on all floors, and not 3.1m which is the control to be adopted for residential uses. 3. A building proposing retail uses to the ground floor and commercial to all levels above is consistent with the objectives of the B2 zone, as it provides a range of retail, and business uses that serve the needs of people who live in, work in and visit the local area, encourages employment opportunities and attracts new business and commercial opportunities. 4. For that reason, I accept the environmental planning ground at [89(3)], that the proposal is consistent with the objectives of the height standard and the objectives of the B2 zone.
4. As I find the proposal to be consistent with the objectives of the standard and the zone, I also state here that I consider the proposed development to be in the public interest because of that consistency, pursuant to cl 4.6(4)(a)(ii) of the WLEP. In forming this opinion of satisfaction I note the view currently enjoyed from the apartments to be inclusive of those landscape aspects at [72]-[73], and the steps taken by the Applicant to minimise the impacts of the development on adjoining or nearby properties from disruption of views summarised at [81]-[82].
5. In arriving at my conclusion, I note here that I have not given weight to the Draft Planning Strategy as that would be, in my view, premature prior to further consideration by the Respondent following the completion of the period of public exhibition, that the Court is advised is underway from 16 March 2022 to 6 May 2022.
6. However, I have considered those matters listed at cl 4.6(5) of the WLEP and conclude that there are no grounds on which the secretary's concurrence should not be assumed.
7. As I am satisfied that the written request has adequately addressed the matters required to be demonstrated pursuant to cl 4.6(4)(a)(i) and the public interest in accordance with cl 4.6(4)(a)(ii) of the WLEP, I find the written request in respect of cl 4.3 of the WLEP should be upheld.

The FSR Standard is exceeded

1. While an exceedance of the FSR standard is not pleaded in the Amended Statement of Fact and Contentions (Exhibit 3), as stated at [6], the Applicant identifies an exceedance and relies on the FSR request prepared by GSA Planning, dated November 2021.
2. The FSR of 2.5:1 permitted on the site according to the Floor Space Ratio Map at cl 4.4(2) is exceeded by the proposal. The site is also denoted on the FSR Map as 'Area 1' to which a benefit of 0.5:1 FSR applies.
3. Accordingly, the FSR applicable to the site is 3:1. The FSR of the proposed development is expressed as 3.9:1.
4. The relevant objective at cl 4.4(1)(b) of the WLEP is for buildings in Zone B1 Neighbourhood Centre, Zone B2 Local Centre, and Zone B4 Mixed Use - to ensure that buildings are compatible with the desired future character of the area in terms of bulk and scale.
5. The objective of the FSR standard at cl 4.4A(1) is to encourage the development of prominent corner buildings in Double Bay. The FSR request cites the chapeau to Part D5.4.7 of the WDCP to assert that the existing character of Cross Street is informed by corner buildings that "do not, in the main, provide good street definition."
6. Instead, the FSR request asserts consistency with the desired future character of Cross Street by reference to Part D5.4.7 of the WDCP on grounds that may be summarised as follows: 1. The proposed massing results in a built form that is contextually compatible with adjoining development and built form to the east of the site on Cross Street. 2. The proposal directly responds to the poor street definition of the existing character by proposing a strong built form that acts as a western gateway to the Cross Street precinct and has been designed to soften the bulk through its articulated built form, strong street wall and recessive upper levels. 3. Recent approvals include developments in excess of the FSR standard ranging from 3.29:1 - 3.54:1, which demonstrates the evolving character of Cross Street, with which the proposed development should be unified by virtue of the objective at Part 5.47 to "unify the street on the north side of the street boundary".
7. For the reasons stated above, and for reasons similar to those set out at [42(1)]-[42(3)], I am satisfied that the proposed development is consistent with the objective at cl 4.4(1)(b), and cl 4.4A of the WLEP, notwithstanding the non-compliance with the standard, and so I am satisfied that compliance with the standard is unreasonable or unnecessary pursuant to cl 4.6(3)(a) of the WLEP.
8. The FSR request advances environmental grounds that are virtually identical to those at [89], and on the basis of the site being a prominent corner site subject to greater height and FSR standards than a number of nearby sites, and due to the consistency with the WDCP set out at Table 3 of the Statement of Environmental Effects (Exhibit A, Tab 18).
9. I accept the grounds advanced by the FSR request are sufficient to justify the contravention of the FSR standard. In arriving at this conclusion, I note that Control Drawing 3, at Part D5.5.7 of the WDCP, with which there is only partial conformity, contains certain controls that are more applicable to shop top housing, and not to commercial uses that are otherwise an objective of development in the B2 zone, such as a 12m deep floorplate.
10. I am also satisfied that the proposed development is consistent with the objectives of cl 4.4(1)(b), and cl 4.4A(1) of the WLEP, and so is in the public interest because of that consistency, pursuant to cl 4.6(4)(a)(ii) of the WLEP.
11. I also consider there to be no matters that would preclude the secretary's concurrence in accordance with cl 4.6(5) of the WLEP and so I find the written request in respect of cl 4.4A of the WLEP should be upheld.

Jurisdictional pre-requisites to the grant of consent

1. Clause 7 of the State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) requires a consent authority to consider whether the land is contaminated and, if so, whether the land is suitable in its current state or requires remediation.
2. According to the Preliminary Site Investigation (PSI) prepared by Douglas Partners dated February 2022 (Exhibit E), the subject site was the site of an AMPOL service station until it was demolished sometime between 1989 and 1991. Excavation for the existing basement, undertaken in the early 1990's, was to a depth of 6m that would have caused the removal of underground fuel storage tanks at that time.
3. The PSI considers there to be a risk that the former use of the site has impacted groundwater at the perimeter of the site and proposes indoor air monitoring for a period of six weeks. On the joint submission of the parties, I allowed time for an air quality assessment to be completed following the conclusion of the hearing.
4. On 4 April 2022, the Court was advised that the results of the Air Quality Assessment and the final PSI Report, when read together, resolved all contentions in respect of contamination.
5. The Air Quality Assessment was undertaken at eight on-site locations, and two off-site locations. The results of the measured concentrations of TPH and VOC in indoor air at the site, relative to the measured concentration at 365 New South Head Road and published background levels and adopted screening criteria, indicate no obvious evidence of significant vapour intrusion into the existing basement.
6. On this basis, I am satisfied that the site is not contaminated, and is suitable in its current state for the purpose for which the development is proposed to be carried out, in accordance with cl 7 of SEPP 55.
7. In arriving at this state of satisfaction I note the Structural Assessment prepared by Xavier Knight dated 10 Feb 2022 (Exhibit D) that strengthening of the existing basement and foundations is to be undertaken in lieu of any excavation that would penetrate the slab or underlying soils.
8. By the same reasoning, I am also satisfied that the proposed development will not disturb, expose or drain acid sulfate soils and cause environmental damage, being the objective of cl 6.1 of the WLEP, and so an acid sulfate soils management plan is not required.
9. The site is within an area defined on the Sydney Harbour Catchment Map (Amendment 2016), being land to which the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (Harbour Catchment SREP) applies. I have considered the relevant planning principles in Part of the Harbour Catchment SREP with which I conclude the proposed development is consistent.

Conclusion

1. After considering all of the evidence before the Court, including the submissions of residents in the area, I have determined that the proposed development is deserving of the grant of consent, subject to conditions pursuant to s 4.16(1) of the EPA Act.
2. The parties have filed agreed without prejudice conditions of consent that incorporate the results of the indoor air quality monitoring at [110], and which form Annexure A.

Orders

1. The Court orders that: 1. The Applicant's written request, prepared in accordance with clause 4.6 of the Woollahra Local Environmental Plan 2014 in respect of the height of building development standard at clause 4.3 of the Woollahra Local Environmental Plan 2014, is upheld. 2. The Applicant's written request, prepared in accordance with clause 4.6 of the Woollahra Local Environmental Plan 2014 in respect of floor space ratio development standard at clause 4.4 of the Woollahra Local Environmental Plan 2014, is upheld. 3. The appeal is upheld. 4. Development consent for Development Application DA58/2021/1 for alterations and additions to an existing four-storey commercial building at 53 Cross Street, Double Bay is granted, subject to conditions of consent at Annexure A. 5. All exhibits are returned, except for Exhibits A, B, F and 4 which are to be retained. …………………… T Horton Commissioner of the Court Annexure A.pdf

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