Stokes v Waverley Council

Land and Environment Court (NSW)|2020-03-26|Before: Bignold J, Robson J

Judgment

COMMISSIONER: I have been given this appeal on remitter following the decision of Robson J in Stokes v Waverley Council (No 2) [2019] NSWLEC 174 (the s56A Stokes Judgment), which at [90] and [97] his Honour set aside my decisions and orders made on 3 April 2019 in Stokes v Waverley Council [2019] NSWLEC 1137.
On 22 September 2017, the applicant lodged Development Application 404/2017 (hereafter the DA) with Waverley Council (the Council) seeking consent for alterations and additions to an approved (under a different consent) five-storey residential dwelling, additional excavation for a car stacker and a change in use to dual occupancy on Lot 43 DP 10771, also known as 21 Thompson Street, Tamarama (the site).
The DA seeks to retain the building envelope of a previously approved consent (DA 365/2014). The proposed development also seeks to fill in areas that were over excavated under the previous consent (DA 365/2014), and to excavate a sump for water management.
On 28 March 2018, the Waverley Development Assessment Panel (the Panel) refused the DA as submitted. On 18 July 2018, the applicant filed a Class 1 application in this Court appealing against the refusal of the DA.
As the parties were unable to reach agreement in conciliation, pursuant to s 34AA(2)(b) of the Land and Environment Court Act 1979 (Court Act), the hearing of the appeal was held on 18-19 February and 5 March 2019. This formed the first hearing of the appeal, with the decision of the Court successfully appealed against by the applicant.
Whilst the proceedings have been remitted to me, the s56A Stokes Judgment makes a finding of error in the factual outline of the proceedings, and the assessment and decision regarding reliance of the development on (structural) piles on an adjoining property without owners consent. I fully adopt the findings of Robson J in his s56A Stokes Judgment, as required by law.
Prior to the remitter hearing, the applicant filed amended plans with the Court on 6 March 2020, which the Court (Registrar) granted leave to rely on.

The site

The site adjoins Thompson Street, forming the southern boundary with a frontage of 12.95m, considered the front and elevated side of the site (RL of 38.38m). A public reserve, possibly part of Tamarama Park, located above Tamarama Beach, forms the northern boundary of similar frontage, at the rear and lower side of the site (RL of 18.84 to 19.54m). The western and eastern boundaries naturally sloped towards the north, and adjoin residential dwellings, over a length of 49.45m, equally. The area of the site 578.4m2.
Currently on this site, the sandstone rock that once formed the natural slope has been excavated (under a previous consent/s). The site currently has steep sandstone rock faces along the southern, eastern and western boundaries. The northern boundary of the site remains at the predevelopment elevation.
From the southern to central portion of the site, the sandstone walls are self-supporting, after which the rock faces are supported by steel joists and shotcrete along the eastern boundary, and piles along the north-western boundary. In the central portion of the site, a mound of (unknown material and depth) fill has been placed.
The parties advise the Court that the site remains as viewed at the conciliation conference on 18 March 2019. Based on these previous observations, there are no other structures on the site, although I recognise a tower crane pad and waste loading area are identified on a recent survey plan.
The surrounding area is characterised by a variety of style and size of residential dwellings that respond to the sloping nature of the land and which seek to take advantage of the views across Tamarama Beach to the north.

Status of existing consent

DA 365/2014 is an approved consent that has commenced, pursuant to s 4.53(4) of the Environmental Planning and Assessment Act 1979 (EPA Act). DA 365/2014 has been physically commenced with the excavation of the ground surface to a depth now observed on the site (the engineering work). The applicant accepts there was over excavation of the site, in parts, and that some supporting piles were constructed on an adjoining property, under this consent.
As the DA under appeal refers to and the applicant relies on DA 365/2014, it is appropriate to summarise what has been approved. DA 365/2014 consents to the demolition of an existing dwelling and construction with excavation for a new five-storey residential dwelling. This consent was subsequently modified and approved under DA 365/2014/A, in September 2015, to increase the floor space ratio (FSR) and change the internal layout. The consent relating to the approved DA (365/2014) and its subsequent modification (DA 365/2014/A) are described in Exhibit 1, and the approved plans are provided in Exhibit E. These consents are hereafter referred to collectively as the 'existing approved consent'.

The proposal under appeal

The parties agree that the DA under appeal is a new development application that seeks to amend and alter the building form of the existing approved consent by a change in, the internal design and use to become dual occupancy. The applicant refers to this DA as being an 'amending development'.
Council has assessed the DA under appeal based on the proposed development's reliance on the same building envelope of the existing approved consent, whereby the FSR and height non-compliances are the same numerically as previously approved. The Council's Statement of Facts and Contentions (SoFC) is based on this understanding. This rationale explains the absence of height non-compliance as a contention, because it has always remained the same numerically as previously approved. The experts agree however that all non-compliances of development standards are a jurisdictional issue for the Court's consideration.
Irrespective of the various amendments to plans and supporting documents to the DA, and evidence to the Court, throughout the appeal process, the Council has not at any stage amended the SoFC, which was filed on 16 October 2018 and on which the consent orders are based. The issues raised in the SoFC are as follows:

sufficiency of the cl 4.6 written request for variation of FSR standard;
structural integrity of the excavation and depth of excavation; and
public interest.

The Council and its experts confirm that the issues raised in the SoFC and by resident objectors are resolved sufficiently for the Court to grant consent to the DA under appeal, as proposed by the consent orders.
To grant consent, the applicant relies on two cl 4.6 written requests seeking variation of FSR and height development standards, which are provided in Exhibits A and F, respectively.
Despite confusion during the hearing following an enquiry by the Court of Council's delegation from the Panel to enter into consent orders to grant consent to the DA under appeal, Mr Hanna subsequently confirmed delegation had been given by the Panel (email dated 29 April 2020) and that the Council has power for the consent orders to be made, pursuant to s 8.15(4) of the EPA Act. It is on this basis, as advised by the Council that the appeal is assessed.
Irrespective of the consent orders proposed by the parties, the Court is required to undertake its own assessment of the proposed development, and make a determination of the appeal, pursuant to s 8.14 of the EPA Act.
I am of the view that the cl 4.6 written requests for both height and FSR fail to satisfy the requirements of cl 4.6 of the Waverley Local Environmental Plan 2012 (WLEP) to vary the development standards.
As a consequence of my assessment based on the evidence before me in this appeal, I am not satisfied that the requirements of subss 4.15(1)(a)(i), (c) and (e) of the EPA Act are achieved.

Public submissions

The Council contacted resident objectors on numerous occasions, pursuant to the Waverley Development Control Plan 2012 (WDCP) when plans were amended and during the appeals process. Most recently, on 13 March 2020, a letter was sent to residents seeking their comment on the amended plans relied on for this DA (Exhibit 5).
Consistent with the Land and Environment Court's COVID-19 Pandemic Arrangements Policy, at [19], the Court directs that objectors submissions are to be provided, where possible, in written format: [19] The Court's Site Inspections Policy, stating that a maximum of six persons objecting to a development proposal should provide oral evidence on site, is temporarily suspended. Instead of giving oral evidence at the commencement of the hearing, objectors' evidence is to be reduced to writing and supplemented with any photographic evidence that would assist the Court to understand their concerns. In proceedings concerning an appeal against a Council, the Council is to provide the objectors' written material to the other party in advance of the hearing and tender it at the hearing.
Prior to, during and in the hearing adjournment, resident submissions were submitted to Council and then tendered to the Court, with a copy made available to the applicant. These resident submissions are collated under Exhibit 5. In total, the Court has received 10 submissions from local residents filed in objection.
In summary, the issues raised by residents regarding the proposed development include:

inconsistency with local bulk and scale as viewed from Thompson Street and Marine Parade,
progressiveness over time of non-compliant development consent on the site*,
overdevelopment of the site,
inconsistency with character, which dominates the streetscape,
visual and noise impact resulting in loss of amenity,
unacceptable precedence*,
exceedance of FSR and height development standards*,
over extraction*,
potential impact to adjoining property owners due to subsidence and unstable excavation walls, structural integrity*,
location of piles on adjoining property, lack of owners consent and retrospective approval reliance, unreasonable burden on adjoining properties*,
proximity to and potential impact to Sydney Water sewer mains*,
traffic congestion, parking insufficiency and potential risk to life in a small street,
inconsistency of dual occupancy with local area*,
reliance of proposed development on a superseded survey in DA and deferment of pile removal to subsequent consent*,
groundwater ingress, impact to integrity of piles and sufficiency of proposed drainage on the site*, and
not in the public interest.

The parties agree that the submissions of adjoining residents at 19 and 23 Thompson Street are of particular relevance for the Court's consideration. The issues raised by these residents are identified by a '*' in the preceding paragraph.

Relevant Planning Controls and Requirements

The parties acknowledge that the DA under appeal is subject to the relevant provisions of the EPA Act. The appeal is assessed against the requirements of s 4.15(1) of the EPA Act, which the Court must be satisfied to grant consent to the DA, pursuant to s 4.16(1).
The site is located within the R2 Low Density Residential Zone, as identified in the WLEP. The proposed dual occupancy is permissible with consent in this zone, pursuant to cl 2.3(3) of the WLEP. Of relevance in consideration of the DA under appeal are the following clauses of the WLEP: cl 2.3, zone objectives; cl 4.3, height development standard; cll 4.4, 4.4A and 4.5, FSR development standard; cl 4.6, exception (variation) to a development standard; and cl 6.2, excavation development standard.
The parties draw the Courts attention to the relevant sections of the WDCP for consideration as Chapters 2.2, and 2.3 of Part C1, which relate to height and streetscape, respectively.

Expert evidence

The applicant in this remitter appeal have relied on Mr Daniel Bliss, Mr Vince Betro, and Mr Andrew Darroch for expert evidence on geotechnical engineering, structural engineering and planning, respectively.
The respondent has relied on Mr Stuart Macdonald for expert evidence on planning.

What is the existing ground level for the purpose of assessing height compliance consistent with the WLEP?

An amended survey plan (dated 29/2/2019 by CMS Surveyors Pty Ltd) is tendered as Exhibit A. The parties agree that the survey levels shown in this plan relate to the architectural plans (Exhibit A and F).
For the Court to determine the actual and quantum of height (non)compliance, pursuant to cl 4.3 of the WLEP, an understanding of the 'ground level (existing)' is essential as it forms the baseline for measurement.
In their assessment of the DA under appeal, the planning experts define the baseline to assess height compliance as the 'pre-excavation' level (the same elevation as adopted in the existing approved consent), which is shown in an earlier tendered survey plan, dated 15 June 2017. The height compliance baseline level relied on by the parties in this DA is the same as adopted in the existing approved consent. It was explained to the Court that adoption of the 'pre-construction' level as the (height) compliance baseline is appropriate when assessing the DA as an 'amending' development application.
Further to this, the experts explained that it would be 'nonsense' to rely on the 'current surface' (excavated level) to assess height compliance because a (height) compliant dwelling would be located below (Thompson) street level, and therefore be uncharacteristic.
I consider however that the approach taken by the experts creates confusion and inaccuracy when defining the ground level(existing) for the purpose of determining compliance with the height development standard. I do not agree that 'ground level (existing)' is the same as the 'pre-construction' level for the following reasons.
It is fact that the excavation of the site commenced under previous consents for the site, including the existing approved consent. It is accepted that the excavation on the site was commenced and deepened in response to each of the approved DAs since 2011. It is also fact that at the time the DA under appeal was submitted to Council (in 2017) the site was already excavated to its 'current surface', as observed on the site and shown in the plans. The parties accept that the 'current surface' has not changed since the submittal of the DA to Council or throughout the various appeals of the DA, and remains the same at the time of this remitter hearing.
I accept that the survey plan, amended on 28 February 2019 appears an accurate reflection of what was observed onsite during the conciliation, except for the waste loading area and tower crane pads, which I have not observed. Setting these subsequent amendments to the most recent survey plan aside, it is understood that they do not alter the elevation levels currently on the site.
I accept that the elevations in the survey plan (dated 28 February 2019) are shown in the architectural plans (specifically A10.09) as the 'current surface'.
Clause 4.3 of the WLEP provides the objectives and defines the numeric (height) development standard. The WLEP measures the numeric height (standard) compliance from the 'ground level (existing)', which is defined as follows: ground level (existing) means the existing level of a site at any point.
The WLEP also defines the finished ground level as follows: ground level (finished) means, for any point on a site, the ground surface after completion of any earthworks (excluding any excavation for a basement, footings or the like) for which consent has been granted or that is exempt development.
The WLEP makes a clear distinction between the ground level that exists (before the grant of a consent) and that which will result from works associated after the granting of a consent (finished). The WDCP, Chapter 2.1, explains and is shown diagrammatically, that the measurement of height (compliance) relative to cl 4.3 of the WLEP, must relate to 'ground level (existing)'.
I find that the experts approach confuses the 'ground level (finished)' as would be applied to the existing approved consent (DA 365/14), with the 'ground level (existing)' that should relate to the DA under appeal. They do this I understand because the experts consider that the DA under appeal is 'amending' the previous consent. I explain my reasoning below why I consider this logic flawed.
The terms of 'existing' and 'current' need to be unpacked to understand how they are applied by the Court in assessment of this DA.
Cowdroy J in Australand Holdings Limited v Parramatta City Council (2003) 123 LGERA 411; [2003] NSWLEC 229 at [18] explored the concept of 'existing' in the context of ground level. Justice Cowdroy adopted the description of 'existing' made by Bignold J in Rockdale Municipal Council v M & L Rizzi [1991] NSWLEC 56. The word 'existing' was explained to refer to the ground level at the date of development consent, and recognised that this may not be the original landform, due to filling or excavation.
Neither the WLEP, nor the WDCP provide a time dependent point of measure to define 'ground level (existing)', nor do they rely on the 'natural' meaning. In pursuit of clarity to what was intended by these provisions, the terms of 'existing' and 'current', are considered from the Merriam-Webster Dictionary (online version, extracted on 27 April 2020): "Existing is 'to continue to be'." "Current is 'occurring in or existing at the present time'."
The approach to seek clarity to interpret the provisions of the EPA Act and WLEP is done consistent with s 34 of the Interpretation Act 1997, as follows: 34 Use of extrinsic material in the interpretation of Acts and statutory rules (1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or (b) to determine the meaning of the provision: (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.
In evidence, Mr MacDonald agreed that his understanding of the term 'current' is synonymous with 'existing'. I concur. The definition of 'current' provided above relates directly to 'existing', and in fact includes this term in its definition.
The planning experts explained that the adoption of ground level (existing) in a planning sense has however a different connotation because it should relate to what was originally there, not what has become of the site. I disagree that this is appropriate in this appeal. It is the literal and logical meaning of the provision that helps the Court to assess the DA under appeal. I find that the experts rely too heavily on what was approved previously to inform what is sought subsequently as a new development for approval. They rely on 'amending' the design already approved in a previous consent but do not appropriately recognise that this is a new development application, not a modification, and that excavation has already occurred prior to consent of this new DA.
I disagree that it is 'nonsense' to adopt the 'current surface' to assess height compliance because a height compliant building would be below ground level. Whilst I accept that a (height) compliant building would be below street level on the Thompson Street side of the site, particularly without any filling, the building itself would not be below ground level on the public reserve side of the site or relate uncharacteristically with adjoining properties located in the central portion of the site. A (height compliant) building located below the street when viewed along Thompson Street would not be out of character, as other dwellings in the street, including those adjoining the site, do not generally project above the Thompson Street level, as they are set down the natural slope. I accept that the site is burdened by height covenants, which limits the height of the building in the southern portion of the site, although this does not alter my assessment.
Further to this, in an (section 56A) appeal determined by Preston CJ in Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 at [3]-[13] (s 56A Baron judgment) the Chief Judge considered the issue of applying for a (new) development application whilst relying on alterations and additions to an existing consent, which is relevant to the DA before the Court. At [5] his Honour specifically requires the consent authority to assess and determine the development application, pursuant to ss 4.15 and 4.16 of the EPA Act. His Honour also observed the complications raised when taking the approach of relying on an amending an already approved development. He states: [3] This course of making a development application seeking consent to carry out alterations to the approved residential flat building, instead of applying to modify the 2016 consent for the residential flat building, was available to Baron: see Waverley Council v Hairis Architects (2002) 123 LGERA 100; [2002] NSWLEC 180 and Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780. But it does lead to complications. .. [5] Another complication is identifying the development that is to be assessed and determined under ss 4.15 and 4.16 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In determining a development application, a consent authority is required to consider the matters of relevance to "the development the subject of the development application" (see 4.15(1)). The consent authority is to determine that development application by granting consent or refusing consent to the application (4.16(1)). Development consent may be granted for the development for which the consent is sought, or for that development except for a specified part or aspect of that development, or for a specified part or aspect of that development (s 4.16(4)). …. [6] The matters to be considered by a consent authority under s 4.15 include the provisions of any environmental planning instrument (s 4.15(1)(a)). The applicable environmental planning instrument here was Sydney Local Environmental Plan 2012 ("SLEP"). …. [7] The "development" referred to in cl 4.6(2), (3) and (4) of SLEP is the development that is the subject of the development application. In this case, this was the development involving alterations to the approved residential flat building, which was the subject of the development application made by Baron on 1 February 2018. ….. …. [13] The complications introduced by Baron electing to make a development application seeking consent for alterations to the approved residential flat building, rather than seeking consent for a new residential flat building embodying the proposed alterations, affected the consent authority's, and on appeal the Court's, consideration and determination of the development application.
I recognise the development explored in the s 56A Baron judgment is not the same as the DA under appeal. I accept that this DA does not require the existing approved consent to be constructed or even commenced to function.
Despite these differences, I also recognise consistency with the s 56A Baron judgment, including the complications for the consent authority by taking such an approach as adopted by the applicant and as assessed by the Council to rely on amending a previous building design under consent, which creates confusion. The DA under appeal here is a separate construction to that already approved, with a distinct design and use as a dual occupancy.
The parties agree that as a new DA it is required to be assessed pursuant to s 4.15 of the EPA Act, and that the provisions of the WLEP and WDCP are relevant for the Court's consideration.
I have not been presented nor persuaded with any evidence that supports the reliance on previous site conditions to assess this (new) DA. The parties have not satisfied the Court that the (site) conditions of the existing approved consent are directly applicable to form the baseline to determining the height compliance for the DA that is now before the Court under appeal.
The site is already excavated, which is shown in the DA plans relied on as the 'current surface'. I find this is equivalent to the 'ground level(existing)', which should be adopted to assess the height (non)compliance of the proposed development, pursuant to cl 4.3 of the WLEP.

What is the requirement to seek variation of the development standard/s?

The parties agree, irrespective of the (ground level) baseline adopted, that the proposed development, shown in the amended plans, exceeds the numeric development standards for FSR and height, as defined in the WLEP.
The proposed development does not comply with cl 4.3 of the WLEP, as it exceeds the maximum 8.5m height limit established in the Height of Buildings Map. The maximum height non-compliance in the proposed development is 13.38m (157% exceedance) and 7.04m (81% exceedance), based on the 'current surface' and 'pre-construction' level, baselines respectively. The height non-compliance relates primarily to the portion of the proposed building located in the southern part of the site, towards Thompson Street. The proposed development complies with the two height covenants that relate to the site.
The parties agree that the proposed height, shown in the amended plans, as it relates to the pre-excavated level corresponds to the height (non-compliance) of the existing approved consent. They also agree that based on the 'current surface' baseline, the height non-compliance exceeds what was previously approved.
A key jurisdictional issue raised in the SoFC and which formed grounds in the DA refusal by the Panel, was the proposed developments' non-compliance of the FSR standard, pursuant to cll 4.4 and 4.4A of the WLEP. The Court acknowledges the proposed FSR shown in the amended plans has been reduced since the Panel refusal of the DA, and that it now corresponds to the FSR non-compliance of the existing approved consent.
Clause 4.4A of the WLEP establishes a maximum FSR of 0.5:1 for the site, which equates to 289.2m2 gross floor area (GFA). The proposed development seeks an FSR of 1.23:1, equivalent to a GFA of 711.43m2 (146% exceedance of the standard).
To vary a development standard/s upon request, the Court must be satisfied the requirements of cl 4.6 of the WLEP, provided below are achieved: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (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. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (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 Secretary has been obtained. (5) In deciding whether to grant concurrence, the 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 Secretary before granting concurrence.
The DA relies on two cl 4.6 written requests seeking a variation of the FSR and height development standards, as defined in the WLEP.
The parties contend that the non-compliance of the relevant standards is similar to that previously approved in the existing approved consent (DA 365/014/A), and therefore is reasonable and not contentious. The experts are satisfied that the (cl 4.6) written requests seeking variation of both FSR and height, and tendered evidence sufficiently address the requirements of cl 4.6 of the WLEP.
However in this appeal, to vary a development standard/s, it is a jurisdictional prerequisite that the Court must be satisfied to grant consent to the DA.
Addressing the first requirement of satisfaction in cl 4.6(3)(a) of the WLEP, there are a number of options to determine the reasonableness/necessity to vary a standard, often referred to as the 'Wehbe tests'. These are helpfully explained by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827. A written request for variation could establish reasonableness/necessity by relying on any of the following: 1. compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved, 2. the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary, 3. the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable, 4. the development standard has been virtually abandoned or destroyed by the Council's own decisions in granting development consents that depart from the standard and hence compliance with the standard is unnecessary and unreasonable, and 5. zoning of the particular land on which the development is proposed to be carried out was unreasonable or inappropriate.
Further to this, Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action judgement) helpfully clarifies the approach for a consent authority to assess satisfaction of a (cl 4.6) request to vary a development standard. The Chief Judge explains the 'preconditions' that must be satisfied, as established in cl 4.6(4) of the WLEP, which provide the consent authority (in this appeal, the Court) power to grant development consent.
Satisfaction of 'precondition one' requires an assessment of the requirements of cl 4.6(4)(a) as follows: (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) (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, …
The first precondition, as established in cl 4.6(4)(a), requires the Court to form two positive opinions of satisfaction. As set out in cl 4.6(4)(a)(i), the (cl 4.6) written request must 'adequately address' that it has been demonstrated the unreasonableness/unnecessity for standard compliance (cl 4.6(3)(a)), and there are sufficient of environmental planning grounds (cl 4.6(3)(b)) to justify a variation. The Court must also be satisfied that a variation of the standard is in the public interest, because the proposed development/varied standard is consistent with the zone and relevant development standard objectives (cl 4.6(4)(a)(ii)).
The second precondition that must be satisfied for the Court to have power to grant development consent, is set out in cl 4.6(4)(b) of the WLEP, and also described in cl 4.6(5), below: (5) In deciding whether to grant concurrence, the 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 Secretary before granting concurrence.
As per the decision of Preston CJ in the Initial Action judgement, the Court is not required to obtain or assume the concurrence of the Secretary, although as expressed at [29] it should consider the requirements of cl 4.6(5) of the WLEP: [29] On appeal, the Court has the power under cl 4.6(2) to grant development consent for development that contravenes a development standard, if it is satisfied of the matters in cl 4.6(4)(a), without obtaining or assuming the concurrence of the Secretary under cl 4.6(4)(b), by reason of s 39(6) of the Court Act. Nevertheless, the Court should still consider the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 100; Wehbe v Pittwater Council at [41].
Gleeson JA and Payne JA, together with Preston CJ in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 (s 56A RebelMH judgment) at [53] determined that the Court is entitled to form its own opinion of satisfaction that is has been demonstrated when considering a variation to a development standard. It is not sufficient to rely on a written request that has made reference to the requirements of cl 4.6, without adequately addressing its requirements.
The (amended) cl 4.6 written requests for variation in FSR and height standards that the DA relies upon are provided in Exhibits A and F, respectively. I address below, the Court's assessment of these written requests together with the evidence tendered and its observations, to form my own opinion of 'satisfaction', pursuant to cl 4.6 of the WLEP.
Consistent with the s56A RebelMH judgment at [77], I rely on my onsite observations, in addition to all the evidence tendered in this appeal to assess the proposed development against the relative development standard/s objectives and the zone objectives.
The objectives that relate to the R2 low density residential zone relevant to the site and for consideration are as follows: Objectives of zone • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.

Is the Court satisfied to vary the height standard for the proposed development?

The applicant relies on the amended (cl 4.6) written request for variation of the height development standard which addresses both possible baselines to assess height (non)compliance.
It is acknowledged that irrespective of which ground level(existing) baseline reference is adopted, that there is a height non-compliance for the proposed development. It is however a significant quantum of variation (almost double) that differentiates the two approaches to measurement of height non-compliance.
The applicant's written request for variation of the height standard has made reference to and relies on the actual quantum of non-compliance of the standard is not the relevant test for the Court to be satisfied. I note the written request relies on the same justification for both possible non-compliance scenarios, in addressing cl 4.6 of the WLEP.
The DA was lodged with Council on 22 September 2017. The parties agree that the height objectives that must be considered by the Court are set out in cl 4.3 of the WLEP 2012, below, with the change from the most recent WLEP version shown in bold italics: 4.3 Height of buildings (1) The objectives of this clause are as follows: (a) to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties, (b) to increase development capacity within the Bondi Junction Centre to accommodate future retail and commercial floor space growth, (c) to accommodate taller buildings on land in Zone B3 Commercial Core of the Bondi Junction Centre and provide an appropriate transition in building heights surrounding that land, (d) to ensure that buildings are compatible with the height, bulk and scale of the existing character of the locality and positively complement and contribute to the physical definition of the street network and public space. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.
Subclause 4.3(2) of the WLEP establishes for the site a maximum height level of 8.5m for the site.
The WDCP, in Part C2, Chapter 2.1, describes the height control relevant for this development, which informs the application of cl 4.3 of the WLEP, as follows: "2.1 Height The WLEP 2012 outlines the maximum permissible building height of a site. Achieving the maximum building height may not be appropriate in all cases and should not be considered as prescribed or allowable regardless of circumstance. Amenity or streetscape impacts may require a lower height or additional setbacks. Nothing in this part restricts Council's ability to require the height of a building to be less than the maximum height as specified in the LEP. Objectives (a) To provide appropriate building heights for flat or pitched roof forms for lower density residential accommodation. (b) To ensure the height and scale of development relates to the topography and street character. (c) To ensure the height and scale of development does not unreasonably impact on views enjoyed by neighbouring and nearby properties. (d) To ensure that the height and scale of development does not result in unreasonable overshadowing of neighbouring and nearby properties. (e) To minimise loss of views from, and overshadowing of, public places. (f) To ensure development in excavation areas does not add to the overall visual bulk of the dwelling. Controls (a) For a building with a pitched roof the maximum wall height is 7m above existing ground level (refer to Figures 4 and 5), except as determined in Control (b) below. (b) For a building with a flat roof, the maximum wall height is 7.5m above existing ground level. (c) Where it is permissible for buildings to be built to a height greater than 9.5m under WLEP 2012, the wall height will be determined by a merit assessment of the design of the building and its relationship to adjoining dwellings. (d) Buildings on steep sites are to be stepped down to avoid high columns, elevated platforms and large under croft areas."

Satisfaction of Precondition One, cl 4.6(4)(a) of the WLEP

The written (height variation) request relies on the first of the 'Wehbe tests' to support the reasonableness/necessity for a contravention of the height development standard because the height objectives of the standard are achieved irrespective of the non-compliance.
To address cl 4.6(4)(a)(i) of the WLEP, the written request considers that a variation of the height standard should be supported because: 1. the objectives of the zone and height are achieved, 2. the proposed development is responsive to the 'unique site conditions' where 'the slope is steeply sloping and had been excavated to accommodate the original dwelling' within the set of covenants; 3. the proposed development utilises the existing approved building envelope, with no increase/change in height above what has been previously approved; 4. the majority of the height exceedance is in a limited portion of the proposed dwelling towards the south of the site, which reduces potential impact to adjoining residents, particularly from view loss and solar access; 5. the proposed building massing (to the south) is consistent with the existing and future desired character, and achieves view sharing; 6. amenity to adjoining properties is preserved, and the articulation of the dwelling down the slope preserves view sharing and responds to topography, 7. the height, bulk and scale is compatible with the existing street and local character due to the presence of large existing dwellings, 8. two dwellings provide a better planning outcome by making additional housing available, and 9. the proposed development positively compliments and contributes to the street network, and public spaces, including that parking is largely contained below ground.
With regards to addressing the requirements of cl 4.6(4)(a)(ii) of the WLEP, the written request explains that: 1. the zone objectives are achieved because the proposed dual occupancy provides for a variety of housing needs in the community, and provides for the needs of the local residents. 2. the height objectives are achieved because: 1. the proposed development presents as a building consistent with height (and FSR) to Thompson Street, which is compatible to the bulk and scale of the locality. 2. the proposed design utilises a stepped form following the slope. 3. environmental amenity is preserved. 1. As the proposed development achieves the objectives of both the (R2) zone and height standard, it is therefore in the public interest.
After review of the evidence before me, including the written request for variation of the height standard I am not satisfied that the proposed contravention in the height standard is reasonable, has sufficient environmental planning grounds or is in the public interest, pursuant to cl 4.6(4)(a)(i) and (ii) of the WLEP. My reasoning is explained below.
I accept that the objectives in cl 4.3(1)(b) and (c) of the WLEP are not relevant for consideration of the DA under appeal.
I also accept that based on the evidence before me, and as relied on in the written request, there are no direct adverse environmental amenity impacts to neighbours from overshadowing or view loss due to the proposed development. I am however concerned of potential privacy impacts due to the large, elevated windows located in the southern portion of the building, giving a perception of overlooking and potentially being overbearing to adjoining neighbours and to the public space. However, as this issue was not raised by residents, in the hearing or by the Council's expert, I will rely on the expert's assessment that it is not an issue for the Court's concern. Therefore, I am satisfied that cl 4.3(1)(a) of the WLEP is achieved.
When viewed from Thompson Street and from the public reserve above Tamarama Park/Marine Parade, based on the photomontages in the written request, the proposed development appears to sit prominently in the streetscape, unsympathetic to surrounding dwellings and the adjoining natural slope. There is a stark transition from the proposed building to the adjoining properties in regards to height, bulk or scale. I find that the proposed development is not compatible with the height, bulk and scale of the existing character of the locality. It is acknowledged that the development seeks to take advantage of views to the north/beach, however when looking from the public space and from Thompson Street, the building appears to draw your eye in an unsympathetic way. The proposed development as perceived from the public space and streetscape looms large. It dominates the adjoining dwellings, the street and across the slope, particularly with the prominence of the building and extensive glass façade in the southern portion of the building. The proposed development borrows visual amenity from the public space.
The proposed design to the adjoining slope and adjoining residential dwelling context is incompatible. The 'stepping' of the building down the slope on the site is not responsive to adjoining residences or other dwellings on this side of Thompson Street. The most prominent portion of the building at the southern end of the site, which is the component that breaches the height most significantly (under both measurement approaches), provides no relief in the streetscape. It is bulky and out of scale for the area when viewed from both Thompson Street and the public space. The written request focuses on addressing the view from Thompson Street but fails to pay adequate attention to presentation to the public space, when viewed from the north. The proposed height of the building is excessive and not responsive to either the surrounding terrain or existing adjoining residences in the locality. I do not accept the assessment in the written request that the building is compatible with Thompson Street. The proposed development does not positively contribute to the public space. I find the proposed development is not consistent with the existing character of the locality.
Therefore, I find that objective (d) in cl 4.3(1) is not achieved as the proposed development does not 'ensure that buildings are compatible with the height, bulk and scale of the existing character of the locality and positively complement and contribute to the physical definition of the street network and public space'.
As the proposed development, and in particular that portion of the building that contravenes the height standard does not satisfy the height objectives (d) in cl 4.3 of the WLEP, I find the request for variation has not satisfied the first Wehbe test, as relied on in the written request to justify the reasonableness of a variation of the height standard. The written request has not demonstrated to my satisfaction that compliance with the development standard is unreasonable or unnecessary, therefore cl 4.6(3)(a) is not satisfied.
The written request relies on the 'unique site conditions where the site is steeply sloping', the existing height covenants across the site and previously approved height levels to provide sufficient environmental planning grounds to justify a contravention of the height standard. I disagree that the uniqueness of the site is steeply sloping because this has been removed by excavation in a previous consent. I also disagree that a height compliant building would have to be massed excessively to the north to reduce impact to the view corridors of adjoining residences, and to achieve its own view benefits. The height covenants are in place to ensure view loss is not an issue for adjoining neighbours. A (height) compliant design is possible without breaching the existing height covenants in place across the site.
The massing of the proposed building to the south, well above the elevation of Thompson Street to maximise the occupants views has the effect of borrowing visual amenity from the public space, and less significantly from other residents on the southern side of Thompson Street, as contended by these residents.
It is apparent from the plans, that to rely on the baseline reference point preferred by the experts, a height compliant building could be constructed in its entirety within the 8.5m height compliance line. There would be no view loss to occupants of the site or adjoining residents, and less potential view loss from across Thompson Street.
However, to rely on the baseline reference level (current surface) as assessed by the Court as appropriate, a height compliant building would be lower than Thompson Street, still able to comply with the existing height covenants and could still achieve significant views for the occupants of the site, with no view loss to neighbours. There would be no amenity impact to occupants or adjoining residents.
Contrary to the position put forward in the written request, I consider that a height compliant building would relate better to the sloping topography, be more consistent with the existing character, capable to comply with height covenants on the site and result in no amenity impact or view loss to adjoining properties or the occupants. Therefore, I am not satisfied that the written request has demonstrated there are sufficient environmental planning grounds to contravene the (height) standard, and cl 4.6(3)(b) is not achieved.
After consideration of the (cl 4.6) written request seeking a variation in the height standard, I find that the written request has not demonstrated or adequately addressed to my satisfaction that a contravention in the height standard is reasonable, necessary or that there are sufficient environmental planning grounds to contravene the standard. A variation of either 157% or 81% above the height standard is unreasonable and unnecessary for the proposed development on this site. The proposed development is not suitable for the site.
The (cl 4.6) written request for variation in the height standard has not demonstrated to my satisfaction the requirements of cl 4.6(3) of the WLEP to justify contravention of the development standard. Therefore, I am not satisfied that a height variation is demonstrated and that cl 4.6(4)(a)(i) is adequately addressed by the written request.
The proposed dual occupancy use will provide housing opportunity in a low density environment, and therefore the first (R2) zone objective is satisfied.
The second zone objective is achieved because the proposed development does not hinder other land uses that provide facilities or services to meet the day to day needs of residents. The experts are satisfied, and I concur based on the evidence before me, that the proposed development is capable of, by design and proposed conditions, ensuring water and sewer services are not impacted from the proposed development.
The proposed development is therefore consistent with the (R2) zone objectives.
As I have previously found that the proposed development is inconsistent with the objective (d) for the height development standard, cl 4.3(1) of the WLEP, I am not satisfied, pursuant to cl 4.6(4)(a)(ii) that a contravention of the height standard sought under this appeal is in the public interest.
I therefore form the opinion and am satisfied that the proposed development contravention of the height development standard in cl 4.3 of the WLEP, is neither reasonable nor necessary, there are insufficient environmental planning grounds established, and it is not in the public interest. Precondition one is not satisfied.
The determination made above is irrespective of the quantum of the variation sought. The baseline reference point is somewhat irrelevant for this DA, as the breach in height is significant by any method of measurement. The extent of the height variation proposed and the location of the breach in the south of the site, results in a building that seeks to maximise its own exposure to the views with scant regard to its relationship to the streetscape, locality, public spaces and to adjoining residences.
Based on the assessment above, I find that the proposed development does not achieve the relevant provisions of the WLEP, is not suitable for the site nor in the public interest, and therefore does not satisfy s 4.15(1)(a), (c) and (e) of the EPA Act.
I find that cll 4.3 and 4.6 of the WLEP, and the relevant requirements of s 4.15(1) of the EPA Act have not been satisfied by the proposed development. Consent for the DA cannot therefore be granted.

Satisfaction of Precondition Two, cl 4.6(4)(b) of the WLEP

The cl 4.6 (height) written request, makes reference to the SEE, and addresses cl 4.6(4)(b) of the WLEP. Consideration of cl 4.6(5) is explained below: 1. The extent of the variation in the standard is acceptable in the context of building heights. 2. There is no public benefit to maintaining the standard, and the development has been through an extensive public exhibition process. 3. The proposed development is consistent with existing and desired future character. 4. There is no matter of significance for the State or regional environmental planning. 5. The objectives of the WDCP are satisfied.
I accept that the concurrence of the Secretary, pursuant to cl 4.6(5) of the WLEP is not required for this DA to be granted consent.
I am not satisfied of the assertion in the (cl 4.6) written request and the SEE that the proposed development better achieves the objectives of the WDCP. There is no detailed exploration of this concept, only a brief statement to this effect, with no supporting detail on the satisfaction of the relevant provisions in the WDCP, particularly those that relate to amenity, which are issues raised by residents.
As I have previously determined, the proposed development is inconsistent with the existing character of the streetscape and locality. In addition, the proposed development does not 'ensure development in excavation areas does not add to the overall visual bulk of the dwelling', and does not 'ensure the height and scale of development relates to the topography and street character', as required in objectives (f) and (b), respectively in Chapter 2.1 (height) of the WDCP.
I do not agree that the proposed development is consistent with surrounding existing building forms or their bulk and scale, particularly when viewed from the public space or the streetscape of Thompson Street.
I find there is public benefit in maintaining the height standard at this site and for the proposed development.
I therefore consider that precondition two has not been satisfied by the proposed development. As there is public benefit in maintaining the height standard, I am not satisfied that cl 4.6(5) of the WLEP is supported by the proposed development.

Is the Court satisfied to vary the FSR standard for the proposed development?

The (cl 4.6) written request relies on the first of the 'Wehbe tests', being consistency with the development standard, to support the reasonableness/necessity for a variation in the FSR development standard.
The definition for calculation of GFA is provided in the Dictionary of the WLEP is: gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes: (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes: (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement: (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above.
Based on the GFA definition above, it is agreed that the area designated for car parking, including the increased area for the car stacker lift well and the sump is excluded from calculation of the GFA.
The calculation and definition of FSR is provided in cl 4.5 of the WLEP, below: 4.5 Calculation of floor space ratio and site area (1) Objectives The objectives of this clause are as follows: (a) to define floor space ratio, (b) to set out rules for the calculation of the site area of development for the purpose of applying permitted floor space ratios, including rules to: (i) prevent the inclusion in the site area of an area that has no significant development being carried out on it, and (ii) prevent the inclusion in the site area of an area that has already been included as part of a site area to maximise floor space area in another building, and (iii) require community land and public places to be dealt with separately. (2) Definition of "floor space ratio" The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area. (3) Site area In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be: (a) if the proposed development is to be carried out on only one lot, the area of that lot, or (b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out. In addition, subclauses (4)-(7) apply to the calculation of site area for the purposes of applying a floor space ratio to proposed development.
For the site area of 578.4m2, the proposed development has a GFA of 711m2 and an FSR of 1.23:1.

Satisfaction of Precondition One, cl 4.6(4)(a) of the WLEP

After review of the evidence before me, particularly the written request seeking variation of the FSR development standard, I am not satisfied, pursuant to cl 4.6(4)(a)(i) and (ii) of the WLEP, that the variation in FSR standard is reasonable, has sufficient environmental planning ground to contravene the standard and is in the public interest. My reasoning is explained below.
The FSR objectives that must be considered by the Court are set out in cl 4.4 of the WLEP, below: 4.4 Floor space ratio (1) The objectives of this clause are as follows: (a) to ensure sufficient floor space can be accommodated within the Bondi Junction Centre to meet foreseeable future needs, (b) to provide an appropriate correlation between maximum building heights and density controls, (c) to ensure that buildings are compatible with the bulk, scale, streetscape and existing character of the locality, (d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality. (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.
Clause 4.4A of the WLEP, below, is relevant for the Court's consideration and provides an FSR for the site area in the R2 zone of 0.5:1. 4.4A Exceptions to floor space ratio Despite clause 4.4, the maximum floor space ratio for a dwelling house or dual occupancy on land in Zone R2 Low Density Residential, Zone R3 Medium Density Residential or Zone R4 High Density Residential is as follows: (a) for lots with an area less than 100 square metres - 1:1, (b) for lots with an area of 100 square metres to 550 square metres - [[(550 − lot area) × 0.0011] + 0.5]:1, (c) for lots with an area greater than 550 square metres - 0.5:1.
To address cll 4.6(3)(a) and (b) of the WLEP, the written (FSR) request explains that a variation of the FSR standard should be supported, as strict compliance to the standard is unnecessary, and there are sufficient environmental planning grounds, because: 1. the objectives of the (R2) zone and FSR development standard are achieved, 2. the modification to create the two units for dual occupancy, with separate entries and stairs has not resulted in an exceedance to the already approved FSR, 3. the FSR is consistent within a previously approved DA and contained within the same building envelope, 4. the proposal utilises the existing excavation with additional excavation for the car lift and sump, and relies on a previously approved (non-compliant) height level, 5. exceedance of the FSR is a response to the 'unique site characteristics', 6. the proposed bulk and scale is 'appropriate' and consistent with the approved building envelope and is compatible with the character of the locality, both existing and desired future, 7. there are no significant amenity impacts in terms of solar access, privacy and views, 8. two dwellings provide a better planning outcome by providing additional housing availability, and 9. the environmental amenity to nearby residents is preserved and thereby minimises any potential adverse amenity impacts in the locality by locating portions of the building underground.
With regards to addressing the requirements of cl 4.6(4)(a)(i) and (ii) of the WLEP, the written request explains that: 1. The zone objectives are achieved because the proposed dual occupancy dwellings provide for a variety of housing needs of the community in a low density environment, and increases vitality in the area. 2. The FSR standard objectives in cl 4.4(1) of the WLEP are achieved because: 1. the proposed development presents to Thompson Street as a building consistent with height and FSR of other dwellings, which is compatible to the bulk and scale of the locality, and in character; 2. the proposed maximum height and FSR correlate, and are appropriate for the site with respect to bulk and scale; 3. the proposed design utilises a stepped form following the slope and is compatible with adjoining dwellings; 4. positively compliments and contributes to the streetscape, consistent in overall scale, with two storey presentation at Thompson Street, and underground parking that does not contribute to FSR; 5. the portions of the building that breach FSR do not result in amenity impacts to existing surrounding dwellings; 6. a (FSR) complaint building would 'unnecessarily step the building form below street level' and would result in amenity impacts to the occupants of the site; and 7. environmental amenity to neighbouring properties is preserved and minimises adverse amenity on the locality. 1. The proposed development achieves the objectives of the FSR development standard and there are sufficient environmental planning grounds to justify a contravention of the standard. 2. As the proposed development achieves the objectives of both the (R2) zone and FSR standard, it is therefore in the public interest.
After assessment of the written request seeking variation of the FSR development standard, I find that cl 4.6(4)(a)(i) of the WLEP is not satisfied for the reasons described below.
I accept that objective (a) in cl 4.4(1) of the WLEP is not relevant for consideration by the Court of the DA under appeal.
The reliance of the proposed development on both the existing excavation and a height exceedance of the standard (cl 4.3 of the WLEP) to accommodate the proposed building and to justify an exceedance of the FSR, is an overdevelopment of the site. The proposed development does not fit within the constraints as existing on the site.
The proposed development relies on a large portion of the building being below ground (in the excavated portion) with inadequate transition to the side and southern boundaries, which I find is unsympathetic to the surrounding terrain, the adjoining properties and to Thompson Street. The proposed design of the building relative to the adjoining slope and immediate residential context is incompatible.
The purported stepping of the building down the (non-existent) 'slope' is not supported in the evidence, including the photomontages. The proposed building shows no relief in the streetscape when viewed from the public reserve, Tamarama Park, Marine Parade or Thompson Street. In reality, the building appears bulky at the (Thompson Street) southern portion of the site, as a direct result of the height non-compliance, and with little relationship to the adjoining residences. The resultant FSR is excessive and not responsive to either the surrounding terrain or adjoining residences in the locality. Therefore, the proposed development does not have 'an appropriate correlation between maximum building heights and density controls', and objective (b) in cl 4.4(1) of the WLEP is not achieved.
I find that the view from the public space, is not adequately addressed in the written request, which has focussed on the perception of the development from Thompson Street. There is no constraint in the provisions that requires only the view from the primary street frontage (Thompson Street) to be considered and not the rear frontage (public space), which also forms part of the locality. The streetscape and existing character of the locality encompasses views from the front, side and rear contexts surrounding the site.
The proposed dwelling when perceived from the rear of the site, Tamarama Park and Marine Parade, and Thompson Street looms large on the landscape, as shown in the photomontages before the Court. The building dominates the adjoining dwellings and across the northern side of Thompson Street. It is acknowledged that the development seeks to take advantage of the views, however when looking southwards from the park/beach, this building draws your eye in an unsympathetic way. The prominence of the proposed development when viewed from the north and south of the site is not compatible with the streetscape or the existing character of the locality. The proposed development is therefore not 'compatible with the bulk, scale, streetscape and existing character of the locality', and does not satisfy objective (c) of cl 4.4 of the WLEP.
The proposed development, and in particular that portion of the building that contravenes the FSR standard does not satisfy the FSR objectives (c) and (d) in cl 4.3 of the WLEP. I find the proposed development has not satisfied the first Wehbe test, as relied on in the written request to justify a variation of the FSR standard.
The applicant's written request has not adequately addressed to the Court's satisfaction that a contravention in the FSR development standard is reasonable. As the objectives of the FSR standard (cl 4.4 of the WLEP) are not achieved by the proposed development, it has not been demonstrated to the Court's satisfaction that compliance with the development standard is unreasonable or unnecessary, therefore does not satisfy cl 4.6(3)(a) of the WLEP.
The reliance in the written request to demonstrate sufficient environmental planning grounds to justify a variation in the FSR standard focus' on a 'compliant building would unnecessarily step the building form below street level' and also that 'most space is below ground level'.
As explained previously, the Court has formed the opinion that ground level(existing) is the current (excavated) surface, therefore the floor space is not technically 'below' the existing ground level on the site, although it is accepted that the majority of floor space is below the ground level of the adjoining lands. Also, as explained previously, the Court is of the opinion that a 'compliant building' would not 'unnecessarily' be below street level. A height (and FSR) compliant building could still achieve adequate views, solar access and amenity. The site is north facing, and therefore a well-designed height and FSR compliant dwelling would be able to capture adequate views and solar access to ensure a positive amenity to its occupants and adjoining residents. The reliance on height non-compliance to justify an FSR non-compliance is not reasonable.
I am not satisfied that the written request has demonstrated that there are sufficient environmental planning grounds to justify a contravention in the standard, and therefore cl 4.6(3)(b) of the WLEP is not achieved.
Therefore, I am not satisfied, pursuant to cl 4.6(4)(a)(i) of the WLEP, that the applicant's written request has adequately addressed the reasonableness or sufficiency of environmental planning grounds to justify a contravention of the FSR development standard for the proposed development.
With regards to the (R2) zone objectives, as specified in cl 2.3 of the WLEP, I agree that the proposed development is consistent with the (R2) zone objectives.
However, I am not satisfied that, pursuant to cl 4.6(4)(a)(ii), the proposed development is in the public interest because the proposed development is not consistent with the FSR standard objectives, specifically (c) and (d) as described in cl 4.4 of the WLEP.
I therefore form the opinion and am satisfied that because the proposed contravention of the FSR standard, cll 4.4 and 4.4A of the WLEP is not reasonable, that there are insufficient environmental planning grounds established to contravene the standard or is in the public interest, precondition one is not satisfied.
My determination above is consistent with the rationale and assessment made by the Panel that warranted refusal of the DA, although I recognise that the FSR has proportionally changed since the Panel refused the DA. The proposed FSR exceedance still remains significantly in breach of the standard and the Panel's comments remain relevant to the proposed development before the Court for the following reasons: 1. the proposed FSR is excessive and not well founded or in the public interest. The objectives of the standard are not achieved with regards to proportionality with height and inconsistency with existing/desired future character. The inconsistency with the standard's objectives is not in the public interest. 2. the proposal is an overdevelopment of the site. The development relies on the extensive plus further excavation, in addition to a significant breach of the height standard, with results in a building showing little relief in the perspective from the north. 3. the development is not orderly.
The (cl 4.6) written request for variation in the FSR standard has not demonstrated the requirements of cl 4.6(3) of the WLEP to justify contravention of the development standard, and therefore I am not satisfied that cl 4.6(4)(a)(i) is adequately addressed by the written request.
As I have found that the proposed development is not consistent with the relevant objectives for the FSR development standard, pursuant to cl 4.4 of the WLEP, I am not satisfied that a contravention of the FSR standard is in the public interest, as required in cl 4.6(4)(a)(ii).
Based on the assessment above, I find that the proposed development does not achieve the relevant provisions of the WLEP, is not suitable for the site nor in the public interest, and therefore does not satisfy s 4.15(1)(a), (c) and (e) of the EPA Act.
I find that cll 4.4, 4.4A and 4.6(4)(a) of the WLEP, and the relevant requirements of s 4.15(1) of the EPA Act have not been satisfied. Consent for the DA therefore cannot be granted.

Satisfaction of Precondition Two, cl 4.6(4)(b) of the WLEP

The applicant's evidence, includes the cl 4.6 (FSR) written request and SEE to address cl 4.6(5) of the WLEP as follows: 1. The proposed development achieves the relevant objectives of the WDCP by responding to the context and character of surrounding buildings; 2. Bulk and scale as it presents to the street frontages is consistent with what was already approved and the proposed development responds to addressing the housing needs of the area; 3. The proposed built form is consistent with surrounding buildings, and a compliant FSR would not result in a consistent built form; and 4. The proposed development for dual occupancy better achieves the objectives of the low density zone, with regards to desired future character, context of surrounding buildings and provides an improved presentation to the public domain which is in the public interest.
I accept that the concurrence of the Secretary, pursuant to cl 4.6(5) of the WLEP is not required for this DA.
I am not satisfied by the assertion by the applicant that the proposed development better achieves the objectives of the WDCP. There is no detailed exploration of this concept, only a brief statement to this effect, with no supporting detail for the relevant provisions in the WDCP, particularly those that relate to amenity.
The SEE that supports the DA has only made cursory statements in satisfaction of the WDCP objectives, with no reliable assessment to support these statements. I have already determined that the proposed development is inconsistent with the existing character of the locality. I do not agree that the relevant WDCP objectives for streetscape are achieved by the proposed development.
As previously explained, I do not agree that the proposed development is consistent with the surrounding building forms or bulk and scale. The proposed development does not achieve objectives (b) and (d) in Chapter 2, Part C1 of the WDCP as it relates to low density residential development. Objective (d) and control (d) in Chapter 2.3, which relates to streetscape. The view from the public space is 'eroded' and 'dominated' by the proposed development.
I consider there is public benefit in maintaining the FSR development standard at this site and find that the proposed FSR is excessive, uncharacteristic in the streetscape and locality, results in an overdevelopment of the site, and to vary the standard would be to subvert the intent of the standard by relying on an extensive (with further) excavation and non-compliant height levels. My assessment is consistent with the considerable public opposition to the exceedance of the FSR for the proposed development, as expressed by neighbours and by the Panel.
I therefore consider that precondition two has not been satisfied. Because there is public benefit in maintaining the FSR standard, I am not satisfied that cl 4.6(5)(b) of the WLEP is supported by the proposed development.

Excavation

The contention as originally raised by Council in its SoFC relates to (excessive) site excavation of up to 6m to accommodate habitable space for use of 'Level 0' as a bedroom. During the original appeal hearing, it was accepted that an additional excavation was required for the deepening of a car lift. During the hearing it was acknowledged by the experts that further excavation was required for a sump to divert (ground)water ingress to the stormwater system.
The amended plans that support the DA indicate that the development seeks to:

excavate up to 6m at the south of the site for the car lift,
back fill up to a depth of 6m through the centre of the site to pre-approved excavation level (existing approved consent),
provide a sump beneath the lift well, and direct stormwater drainage towards Tamarama Park.

The parties agree that based on the applicant's expert reports, amended plans together with draft conditions of consent, the contention as it relates to excavation is resolved to their satisfaction.
I concur that the objectives of cl 6.2 of the WLEP and Chapter 1.3, Part C1 of the WDCP, as they relate to the earthworks/excavation that are the subject of this appeal are achieved, as shown in the amended plans and provided for in the draft conditions of consent.
I accept that based on the improved accuracy of the most recent survey report and detailed consideration by the applicants structural expert, the structural and stormwater issues that were raised by the Court resolve this contention, based on the amended plans and conditions of consent. I acknowledge the concerns of the adjoining residents to structural integrity, and accept that the proposed conditions of consent seek to address this issue.
In addition, the experts have advised the Court that the structural integrity of the walls supporting the excavation is not a matter for the Court to be concerned. The applicant's geotechnical and structural experts, with no contest from Council, confirm that the development does not rely on these walls to support the building structure and that the walls/piles are structurally adequate to serve the purpose required for the proposed development. These walls were constructed as part of the existing approved consent.
On this basis, the issue that relates to potential reliance on structural piles located on an adjoining property is resolved and is described by the draft conditions of consent. I accept, the actual presence and location of the piles is a civil matter for the adjoining resident, the Council and the applicant as it relates to a separate consent, not part of this DA under consideration.
Stormwater drainage, specifically the proposed location and excavation of the sump (for groundwater ingress) at the base of the car lift was resolved during the hearing by joint conference between the engineering experts. As a result, the parties agreed with leave granted by the Court, to amend the stormwater plans and relevant architectural plans, to extend the excavation to accommodate the sump, show the OSD (onsite detention) tank located in the front of site and provide water quality treatment of the seepage/ discharge.

Issues raised by residents

With regards to the resident objectors, the Court has assessed all written submissions tendered, and sought the respondent's advice as to how the objectors issues have been resolved. The following is a summation of the respondent's response to the Court.
The adjoining residents to the site both raised issues that relate to structural integrity and engineering design. I agree with the experts that the geotechnical and structural issues that are relevant to the DA before the Court under appeal are resolved by the supporting documents to the DA, including the amended plans and draft conditions of consent. The Court recognises that there are some issues that the residents raised that the Court does not have power to resolve in this appeal. In particular, the location of the structural piles is not for the Court to address, however it has been assured to the Court that by design and the conditions of consent there will be no reliance of these piles as part of the proposed development.
The potential to impact services has been addressed by conditions of consent. The Court is assured that there will be no impact to the Sydney Water pipe works that are located on the adjoining property and that the Council's services are capable of servicing the additional demand for the proposed dual occupancy, including stormwater runoff.
Exceedance of FSR and height development standards, and overdevelopment were raised by a number of residents. I have addressed these issues earlier in this judgement. I agree that the proposed non-compliance of these standards is unreasonable, results in an overdevelopment and not in the public interest. I acknowledge that the Council formed a different opinion in making the consent orders.
The issue of increased traffic due to an additional dwelling was also raised by a number of residents. I am satisfied by the explanation of the experts that there will be no adverse impact to traffic flow or risk to pedestrians as a result of the proposed development. The accommodation of vehicles to be used on the site within the proposed car stacker should alleviate any parking constraints. This was not an issue of contention by Council and no evidence was presented to the Court.
The proposed development's inconsistency with bulk and scale, character and streetscape was raised by residents, particularly from the perspective of Thompson Street. The result is an overdevelopment of the site. I have addressed this issue in the judgment above, and find that the proposed development is inconsistent with the bulk and scale of the area, and the existing character of the locality, and therefore agree with the residents' concerns. I accept that the Council formed a different opinion in making the consent orders.
The loss of amenity, specifically from noise and views to neighbouring properties was raised by the residents. I have dealt with this issue in the judgement above.
The unacceptable precedence in allowing dual occupancy developments was raised as an issue for some residents. I consider this is resolved as it is a permissible use in the R2 zone, pursuant to cl 2.3 of the WLEP.

Consent Orders

In consideration of the granting of consent to the DA, I am required to: assess the evidence that the approval is lawful and appropriate; be satisfied that any objections have been properly taken into account; and confirm that reasonable notice has been given to all persons who objected to the proposal detailing the content of the proposed orders, the date of the hearing and the opportunity for them to be heard.
I am not satisfied in my assessment of these requirements and accordingly, consent is not granted to the development, notwithstanding the parties' agreement to consent orders in determining this matter.
I have carefully considered the evidence before the Court in the appeal together with the written submissions of the residents and my observations during the previous onsite view during the conciliation. Having carefully considered the information before me in evidence, and as required to make my own assessment, I am not satisfied the proposed development complies with s 4.15(1) of the EPA Act, and is therefore DA 404/2017 is refused, pursuant to s 4.16(1)(b).

Orders

Consequently, the orders of the Court are as follows: 1. Leave is granted to rely on the amended cl 4.6 written request for variation of height, filed 22 April 2020. Leave is not granted to amend the DA to include strata subdivision. 2. The appeal is dismissed. 3. Development Application 404/2017 seeking alterations and additions to an approved five storey building for use as a dual occupancy, with excavation for a car stacker and sump, on Lot 43 DP 10771, also known as 21 Thompson Street, Tamarama is refused. 4. The exhibits are retained. ……………………. Sarah Bish 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: 20 May 2020

(2003) 123 LGERA 411

(2002) 123 LGERA 100

(2007) 156 LGERA 446

(2018) 236 LGERA 256

At a glance

Court

Decision date

Before

Source

Judgment (20 paragraphs)

Parties

Cases Cited (15)