SDHA Pty Limited v Waverley Council

Is the development substantially the same development for which development consent was granted? The evidence 5Expert town planning evidence was provided by Mr Lee Kosnetter, for the council and Mr Michael Harrison, for the applicant. 6Mr Harrison states that previous modifications largely involved internal modifications but accepts that previous approved modifications relate to a slightly different roof vault design. He considers that the visual change as seen from anywhere in the public domain is immaterial and firmly considers that the additional gross floor area in previous approvals are so closely within the approved envelope that the difference is negligible. While the previous roof element approvals were akin to features of the previous built form on the site they are not a replica, just a varied roof form. The proposal is consistent with providing a varied roof form rather than a flat featureless roof. 7Mr Kosnetter disagrees that all previous modifications were largely of an internal nature. Previous amendments did modify the bulk of the building as the vaults got higher in some applications and squared off in others. These previous modifications were substantially the same as they typically modified approved structures that had a specific planning purpose - to modulate the roof facade with elements akin to what are now termed 'architectural roof features' in the Standard template LEP. 8The location of these features was limited generally to the areas which previously displayed bulk above the roof plane, namely the corner turrets, plant equipment and lift overrun. To that extent, the approved development is essentially alterations to the building at this level, whereas the current proposal presents additional elements above the roof plane not anticipated by the original approval, representing more of an additional storey type application. Findings 9Section 96(2)(a) requires that the Court "must be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted". In Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298, Justice Bignold at [390] identified the relevant test. His Honour stated: "The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is essentially or materially the same as the (currently) approved development. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper context (including the circumstances in which the development consent was granted)." 10On the question of whether the development is substantially the same development for which development consent was granted, I accept the conclusions of Mr Harrison. Mr Kosnetter helpfully set out the modifications that have been approved by the council since the original approval in December 2008 so that an appreciation could be made of the changes over time. Mr Kosnetter accepted that there were no qualitative changes that would support a finding that the modification was not substantially the same development as the development for which consent was originally granted. The proposal still provides for residential apartments, hotel apartments, retail space and a basement parking area. 11From a quantitative point of view, there can be no dispute that the 117 sq m.of additional floor is a minor increase, at best, above the approved area around 26,000 sq m. The additional floor area also does not exceed the height of the approved building. Mr Kosnetter maintains that the approved development is essentially alterations to the building at the upper level that would be seen as an additional storey to the approved development. For reasons set out later in the judgment, Mr Kosnetter's comments are not without some merit but on the question of whether a comparison of the quantitative changes proposed in the proposed modification and the original approval results in a development that is not substantially the same development as the development for which consent was originally granted; the question must be answered in the negative. 12I am satisfied that the modification results in a development that is substantially the same development for which development consent was granted and that an assessment of the merits is required.

Does the development have excessive bulk as a result of the proposed modification? The evidence 13Expert urban design evidence was provided by Ms Gabrielle Morrish, for the council and Mr Harrison, for the applicant. Mr Kosnetter supported the views of Ms Morrish. 14Ms Morrish states that the proposal has an adverse impact as, unlike the previous approvals, it joins together the distinctive vault forms on the roof. The purpose of the vaults in the original approval was to add visual interest to the top of the building (it is assumed) for any views gained down on the building from the surrounding area. The previous approvals changed the shapes of the vaults but still allowed them to be read as distinct elements. The current application joins these vaults with further vaults, losing the distinctive forms and creating, in effect, a continuous floor plate over the western section of the building. 15This linked form is likely to be visible from Gould Street and possibly across the park from near the beach front and will be read as a full floor of development in this location. This is counter to the intent of the original approval and goes quite some way to reintroducing massing and bulk which was deleted to gain the original approval. 16A sixth floor on this building is not appropriate given it is already taller than it's context and already over the height and FSR control. It will potentially set a precedent height for other buildings in the vicinity. The original design and approval had the vault forms as roof features. This sort of treatment today is supported by clauses in the LEP that allow exceedance of height. However the extent of floor space now means that the vaults are no longer roof features but actual floors in the development. 17In the opinion of Ms Morrish, the extent of floor space already granted is more than generous and there is no need for anything further. The need for extra floor space and vaults to enhance the amenity of the units is not required. Under the previous approval they were already generous 3 bed apartments with exceptional views from the living areas and private open space. Ms Morrish does not consider a fourth bedroom, of the extent proposed, is required to achieve amenity for these dwellings. To continue expansion of this level of the building is putting private interests ahead of the intent of the controls which was actually for four storey forms to Campbell Parade. This building is already well above the four storey desired future character. 18Mr Harrison considers that generally the roof vaults are placed in an irregular pattern across the sixth level and that the two small additional vaults are part of the irregular pattern The proposal is virtually indistinguishable when seen from anywhere in the public domain. 19The proposal greatly adds to the amenity of two apartments by having a master bedroom facing the ocean view rather than to the rear. The general roof vault design was always intended to be visible from the public domain to reduce the visual effect of a flat roof - so it is not surprising that the partial sixth floor is visible. The proposed two additional small vaults are unlikely to be able to be seen or distinguished from the other vaults because of their extent of setback from the street. 20With regard to the Gould Street view, the new vaults may be slightly visible although Mr Harrison considers them to be hardly noticeable given the extent of other vaults and the fact that the relevant part of the proposal is generally behind an existing lower building between the proposal and Gould Street. 21The planning controls while stating an intent for the area do not recognise the scale of the existing building on the site. The original approval was based on the height of the existing building in order to encourage a much better quality building in this world renown location by cleverly adaptively reusing the structure and converting a very detracting building to one that positively contributes to its special setting. Findings 22In balancing the competing evidence, I agree with the conclusions of Ms Morrish for a number of reasons. First, it is important to understand the history of the development on the site, and particularly the sixth floor of the development. There was no dispute that the proposed development, even in it's original approval in 2008, exceeded the height and floor space ratio controls. Given that the proposed development sought the adaptive reuse of an existing building, the council, not unreasonably in my view, allowed variations to these controls. There must however be a point where any further variations become unacceptable. I am satisfied that this point has been reached, based on the evidence of Ms Morrish. 23In her evidence (Exhibit 4 at [5]), Ms Morrish sets out the design approach for the sixth floor where she states: Since the original approval FSR and habitable space has been allowed into the mezzanine level or level 6. However this space was allowed on the basis that it was contained within distinct roof forms - the vaults and was not a partial floor over the building. The original approval included roof vaults that were to light the floor below and break up the roof form. A number of the vaults had a lower profile and were smaller than the currently approved forms. Approvals for DA applications A and B allowed these vaults to be raised and floor space to be contained within them on the basis that these vaults still essentially coincided with the existing vaults or plant areas that had additional height under the approved application. The FSR as part of these approvals increased from 3.88:1 to 4.247:1 including wintergardens. The extent of the habitable space on the roof increased from 575 sq m to 1326 sq m. This application seeks to increase the area on the roof to 1,443 sq m and increases the FSR by a further 86 sqm. This does not result in a change to the ratio given the size of the site. This proposal does change the approach to the discreet roof form vaults. This current application provides vaults that merge into other vaults, creating a joined roof form across the proposal. 24The approach that the council has adopted in allowing some development on the sixth floor through the interesting vault forms has merit in an urban design sense. I see no reason why this sensible approach should be diluted through the additional floor area proposed in this application. 25Second, and while the sixth floor units would have increased amenity, it is difficult, if not impossible, to argue that the units need the additional amenity given the panoramic and even iconic views over Bondi Beach that will still be available without the additional floor area. 26Third, and even though the additional floor area will not be viewed from all locations around the site, the vault structures on the roof can be viewed from certain locations near the beach and from other apartments to the west of the site . The irregular but separate and distinct nature of the vaults allows them to be read as distinct elements from many, but not all locations however the current proposal will see some of the vaults linked and seen as roof elements of greater mass and bulk. This is inconsistent with the approach to the development of the sixth floor where it was envisaged that there would not be a full or partial floor at this level. 27Fourth, and even though the council approached the redevelopment of the site through the adaptive reuse of the building it does not follow, in my view, that simply because the non-complying height of a building may not able to be seen from a number of locations that this, in itself, justifies a further breach of the height standard. The height standard must have some work to do in considering the appropriate height of a building on the site, particularly given the high prominence of the Bondi Beach area.

Orders 28The orders of the Court are: (1)The appeal is dismissed. (2)Application DA-619/2007/J to modify the approval for the redevelopment of the Swiss Grand Hotel building at 180-186 Campbell Parade, Bondi Beach is refused. (3)The exhibits are returned with the exception of exhibit 1

G T Brown Commissioner of the Court 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: 06 November 2014