Thinq Net Pty Limited v Woollahra Municipal Council

Land and Environment Court (NSW)|2020-01-23

Judgment

COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the refusal by Woollahra Municipal Council (the Respondent) of Development Application No. DA33/2018/1 seeking demolition of existing structures and construction of a new six (6) storey shop-top housing development, containing 23 apartments, two ground floor level retail spaces, two landscape rooftop gardens and car parking with vehicular access via Gumtree Lane.
In accordance with its usual practice, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on the 23 April 2019, and at which I presided. As resolution was not reached, the conciliation conference was terminated, however the parties subsequently consented to me hearing the matter.
On 31 July 2019, the Applicant was granted leave by the Court to amend the application and rely upon amended plans (marked Revision B) and documents subject to the Applicant paying those costs of the Respondent thrown away as a result of the amendment. The amendments can be summarised as follows: 1. Deletion of the uppermost storey, resulting in a lowering of the building 2. Reduction in number of apartments from 23 to 15 3. Partial deletion of basement, reducing car parking spaces from 37 to 22 4. Reduction of the gross floor area 5. Increased setbacks from Gumtree Lane 6. Reduction in width of central light well
The facts and contentions, including the background to the dispute, are found in the Amended Statement of Facts and Contentions marked Exhibit 1. Arising from the amendments at [3], the contentions were narrowed and may be summarised as follows: 1. Contention 1 - the proposal exceeds the height of buildings development standard and the development is not consistent with the objectives for development within the zone in which development is proposed to be carried out. 2. Contention 2 - the development fails to provide a range of uses and so will result in the loss of employment and set an undesirable precedent for the Double Bay centre. 3. Contention 3 - the proposed development is not in the public interest as it is inconsistent with the objectives of the zone.

The site and its context

The site at 21-27 Bay Street, is currently occupied by the following: 1. No 21 Bay Street contains a single storey rendered masonry building accommodating a retail premises. 2. No's 23-25 Bay Street contains a 2-3 storey building with parking at ground floor level accessed off Gumtree Lane, accommodating 2 ground floor retail premises and commercial premises on the first floor. 3. No 27 Bay Street contains a 2-storey building with parking off Gumtree Lane accommodating a ground floor retail premises and a commercial premises on the first floor.
The site is generally rectangular in shape comprising four lots, being legally described as Lot 1 in DP 196796, Lot 12 in DP 85469, Lot 13 in DP 81623 and Lot 14 in DP 200891 with a total area of 820m2, and fronting both Bay Street and Gumtree Lane in Double Bay.
While not identified as such by the parties in Exhibit 1 or Exhibit A, it relevantly arises from submissions that the site is located within the Flood Planning area, as set out at cl 6.3 of the Woollahra Local Environmental Plan 2014 (WLEP).
The site is located to the southern section of Bay Street within the Double Bay Local Centre (B2 Local Centre zone) pursuant to the WLEP, in which mixed use retail, business and office are permissible with consent and in which the objectives of the zone are in the following terms:

To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.
To encourage employment opportunities in accessible locations.
To maximise public transport patronage and encourage walking and cycling.
To attract new business and commercial opportunities.
To provide active ground floor uses to create vibrant centres.
To provide for development of a scale and type that is compatible with the amenity of the surrounding residential area.
To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.

The site falls within the scope of the Woollahra Development Control Plan 2015 (WDCP). The relevant provisions are considered further below.

The proceedings

For the reasons stated at [2], and as no objectors indicated they wished to speak, the proceedings commenced at Court with the benefit of public submissions contained in the Respondent's bundle of documents (Exhibit 2, Tab 5).
As the matters in dispute relate to town planning and property economics, the Court was assisted by the following experts: 1. For the Applicant: Mr Brett Brown (town planning), and Mr Rhys Quick (property economics). 2. For the Respondent: Mr Wilson Perdigao (town planning), and Mr Peter Leyshon (property economics).
In their joint report, marked Exhibit 6, the town planning experts substantially agreed on the issues in Contention 1, and deferred to the property economics experts for those matters in Contention 2 that are most relevant to the zone objectives. Consequently, the parties relied on oral evidence only from Mr Leyshon and Mr Quick.
At the commencement of the hearing, and with the consent of the Respondent, the Applicant tendered a set of plans that were agreed to be identical to those for which leave was granted at [3], identified as Revision C, but for linework that identified the outline of the proposal the subject of the conciliation conference at [2]. These plans were later marked Exhibit B.
A summary of the amended proposal for which leave was granted at [3] appears at drawing DA 9000 (Exhibit B) in the following terms: "This DA proposes to combine 3 lots between 21-27 Bay St, and provide high quality mixed use building containing three tenancy spaces for retail or commercial uses, 2 levels of residential car parking accessed from the rear laneway, a spacious residential lobby on ground floor to service the 4 storeys above containing 15 dwellings." ...
Where an application relates to residential apartment development, including shop-top housing, the operation of cl 50 (1A) of the Environmental Planning and Assessment Regulation 2000 requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50 (1AB), which include attestations in relation to cl 28 (2)(b) and (c). I am satisfied that the statement found behind Drawing DA9000 in Exhibit B, and signed by Brian Meyerson of MHN Design Union is in a complying form.
Ms Reid, counsel for the Applicant, and Ms Puckeridge, for the Respondent, provided me with written submissions that assist in understanding the parties' preferred position in relation to the matters in dispute.

The Applicant seeks to justify contravention of the height development standard

The proposed development exceeds the height of buildings control, at cl 4.3 of the WLEP of 14.7m.
The objectives of the height control are in the following terms: (1) The objectives of this clause are as follows - (a) to establish building heights that are consistent with the desired future character of the neighbourhood, (b) to establish a transition in scale between zones to protect local amenity, (c) to minimise the loss of solar access to existing buildings and open space, (d) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, (e) to protect the amenity of the public domain by providing public views of the harbour and surrounding areas.
The Applicant relies upon a written request prepared by Mr Brett Brown of Ingham Planning dated 19 July 2019 (Exhibit G) to justify the contravention of the standard pursuant to cl 4.6 of the WLEP.
The exceedance of the height is identified in the written request as follows: 1. 16.7m to the roof parapet on Bay Street. 2. 17.25m to the roof parapet on Gumtree Lane. 3. 2.8m to the top of the lift overrun.
The town planning experts agree that the written request adequately addresses the matters required to be demonstrated under cl 4.6(3), however they are not agreed as to whether the proposal is consistent with the zone objectives at [10] and so are apart on whether cl 4.6(4)(a)(ii) is satisfied.
As Mr Perdigao puts it (Exhibit 6, page 4): "…it is disagreed that, the proposal is in the public interest as it remains inconsistent with the objectives of the B2 zone in that it does not: i. provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area; ii. employment opportunities in accessible locations; and iii. new businesses and commercial opportunities as it reduces the commercial space available in the Development"
Clause 4.6 of the WLEP provides the Court with the power to grant development consent to the development even though the development would contravene the development standard found in cl 4.3 of the WLEP. However, that power is subject to conditions.
As shown by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 ("Initial Action"), for the Court to have the power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that: 1. The proposed development will be consistent with the objectives of the particular standard in question (cl 4.6(4)(a)(ii)); and 2. The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)); 3. The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)); and 4. The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).
Most relevantly in this case, the Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the power of the Court to grant development consent (Initial Action at [14]). I must be satisfied that: 1. the Applicant's written request has adequately addressed the matters required to be demonstrated by subcl (3); and 2. that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.
Clause 4.6(4)(b) also requires that the Court is satisfied that the concurrence of the Secretary has been obtained, noting that the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) of the LEC Act but should still consider the matters in cl 4.6(5) of the WLEP (Initial Action at [29]).
The written request acknowledges that the proposal exceeds the height control in three locations and states that, for the following reasons, compliance with the development standard found in cl 4.3 would be unreasonable or unnecessary: 1. The objectives of the standard are achieved notwithstanding noncompliance with the standard. 2. The underlying objective or purpose would be defeated or thwarted if compliance was required and therefore compliance is unreasonable. 3. The development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable.
The written request also acknowledges that these reasons are drawn from the five tests outlined in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51]. However, as the town planning experts are agreed that the objectives of the height standard are achieved notwithstanding noncompliance with the standard (at [29(1)], the Applicant submits that the reasons that follow, at [29(2) and 29(3)] are not necessary to press, or be relied upon.
In support of [29(1)], the written request states, and I accept, that the objectives of the height standard set out at [20] are achieved notwithstanding noncompliance for the following reasons: 1. Firstly, the proposed building height is consistent with the desired future character of the neighbourhood as it presents 4 visible storeys to Bay Street that is consistent with the building opposite at 16-22 Bay Street. Both buildings are 1-storey higher than the WDCP control and due partly to the need to raise floor levels due to avoid flooding. Furthermore, in considering the desired future character of the neighbourhood, development at 16-18 Cross Street, 20-26 Cross Street, and the Cosmopolitan Hotel on Bay Street all exceed the maximum permissible height that are, or were, considered consistent with the desired future character. 2. Secondly, as the site is not located near a lower density zone, there is limited work for the development to do in transitioning in scale between zones, and a reduced likelihood of impact on local amenity. 3. Thirdly, the proposed development does not adversely impact on views, privacy or solar access to existing buildings, open space or in the public domain.
I am satisfied as required by cl 4.6(4)(a)(i) that the written request adequately addresses the matters required to be demonstrated by cl 4.6(3)(a) by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case because the underlying objective or purpose of the development standard is met notwithstanding the contravention of the height control.
As the first test in Wehbe is satisfied, there is no need to address the reasons provided at [29(2) and 29(3)].
The environmental planning grounds relied upon must be sufficient to justify a contravention of the development standard with a focus on the aspect of the development that contravenes the development standard, not the development as a whole. (Initial Action at [24]).
The written request relies on the following environmental planning grounds to justify contravening the development standard: 1. Firstly, the request asserts that requiring a lower building would produce a poorer urban design outcome as it would be inconsistent with other development in close proximity and a more poorly defined streetscape. 2. Secondly, as stated at [9], the site is located within the Flood Planning area, according to cl 6.3 of the WLEP. As a result, the proposal includes floor levels above the flood control, which contributes to more than 30% of the height exceedance. 3. Thirdly, the proposal does not create or result in any unreasonable impacts on neighbouring properties, or the surrounding environs.
While I consider the inference at [35(1)] that a building of complying height would result in a poorly defined streetscape to be a statement of generality unsupported by evidence in the written request, I accept that the proposed height will be consistent with other development in close proximity and I am satisfied that the other matters set out in the written request adequately address the particular aspect of the development that contravenes the development standard on environmental planning grounds.
In arriving at this opinion of satisfaction I also accept the Applicant's submission that the proposal is consistent with certain Objects of the EPA Act insofar as it promotes the orderly and economic use and development of the land (s 1.3(c)), and that steps have been taken in the design of the proposal to consider its surrounds so as to promote good design and amenity of the built environment (s 1.3(g)). In particular, the uppermost portion of the proposal shown on drawing DA 2504 is setback from the boundary and is raked to present in the form of a roof, which minimises its visibility from the public domain.
In relation to the second opinion of satisfaction at cl 4.6 (4)(a)(ii), I am required to be satisfied that the proposed development will be in the public interest because it is consistent with the objectives in the particular standard, and the objectives of the zone.
For the reasons stated at [32], I am satisfied the proposed development is consistent with the objectives of the height control. However, as stated at [6], I must consider Contention 2 in order to make a finding as to whether the proposed development is consistent or inconsistent with the objectives of the B2 zone.

Is the proposed development consistent with the objectives of the zone?

As shown by Preston CJ in Initial Action at [26], the Court exercising the functions of the consent authority on appeal, must be directly satisfied about the matter in cl 4.6(4)(a)(ii), not indirectly satisfied that the Applicant's written request has adequately addressed the matter in cl 4.6(4)(a)(ii).
If the proposed development is inconsistent with the objectives of the zone, the Court cannot be satisfied that the development will be in the public interest for the purposes of cl 4.6(4)(a)(ii).
The Respondent contends that as the development the subject of the development application does not provide a range of uses such as commercial accommodation, the proposed development is inconsistent with the following objectives of the zone: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. … • To attract new business and commercial opportunities. …
More specifically, as the proposal removes 1,010m2 of commercial space from the site in favour of 169m2 of retail/commercial space at the ground floor only, it has a negative impact on the variety of uses in Double Bay and so offends the zone objectives, and the provisions in the WDCP which operate in unison.
In particular, the first zone objective to provide a range of retail, business, entertainment and community uses is supported by the objectives and controls in Part D5.6.2 which encourage commercial uses on the first floor (Objective 4), including retail, commercial and community uses at ground and first floor levels and solutions that promote retail, commercial use at first floor level such as galleried arcades (Control 3).
Furthermore, the Respondent submits that the Court cannot be satisfied that new business and commercial opportunities will be attracted to Double Bay so as to ensure the continued commercial viability and competitiveness of the Double Bay centre (Part 5.3.2 of the WDCP).
The Respondent's argument is supported by Mr Leyshon's evidence which may be summarised as follows: 1. Double Bay is currently a significant employment centre with consulting professionals constituting around a third of activities (Exhibit 5, [18]) and who require commercial space for their activities. 2. In 2016, Double Bay accounted for 20.4% of total jobs in the Woollahra Local government area which indicates its strategic importance as an employment centre. (Exhibit 4, [3.6]). While precise data is difficult to extract, office-based employment accounts for somewhere between 28% and 39% of all jobs in Double Bay itself (Exhibit 4, [3.17] and [3.21]). 3. These figures suggest that employment in Double Bay is more diverse than the retail and food-related services with which it has been historically associated (Exhibit 4, [3.22]) 4. The current quantum of office space in Double Bay is likely to be around 23,000m2, and vacant office space is likely to be in the order of 1,500m2 or 6.5% of the total (Exhibit 4, [3.37]) which is less than the Sydney average of around 10%. 5. Even though co-working spaces are evident in the Double Bay centre, those should not be considered in the vacancy rates given that a head lease can mask the true availability of office space being offered in a co-working space, by operation of a form of 'sub-lease' (Exhibit 4, [3.34][3.35]). 6. Discounting co-working spaces and serviced office accommodation, the largest single office tenancy available for lease is 189m2. The remainder of vacant office space in Double Bay is less than 100m2 in size (Exhibit 4, [3.38]). 7. Potential demand for office space in Double Bay between 2016-2041 is likely to be greater than 7,065m2 (Exhibit 5, [34]). 8. There is no certainty that approved developments comprising 6,240m2 of commercial/retail space claimed by Mr Quick (Exhibit M, Table 3.5) will proceed so future commercial space cannot be relied upon, evidenced by just 1,511m2 currently being under construction. 9. The proposed development does not provide for a range of retail, business and other uses, and may serve as an undesirable precedent for future development resulting in a loss of retail and commercial employment that may compromise the viability of Double Bay as a retail and commercial centre (Exhibit 4, p 22-23).
In the alternative, Mr Quick for the Applicant, sets out his initial evidence in Exhibit M, which may be summarised in the following terms: 1. The Double Bay centre has developed individual precincts with their own character, which is reflected in their own built form and business mix (Exhibit M, [49]). 2. The existing business mix in what he refers to as the 'East Precinct', in which the site is located, generally comprises smaller businesses with less than 20 employees in street-level shopfront spaces as well as above ground shop-top space, and where it is rare for one tenant to occupy a whole floor (Exhibit M, [55][56]). 3. Consistent with this, between 2013-2018 the share of larger businesses declined in the Double Bay-Bellevue Hill SA2 area with only 7.4% local businesses now employing more than 5 employees in what Mr Quick describes as a shift to the micro and small firms which generate little demand for dedicated office space (Exhibit M [59]), and which can be well accommodated in more flexible spaces, such as shopfronts which can be preferable given the exposure rather than dedicated office buildings (Exhibit M, [60] and [68]). 4. Bay Street is more suited to retail facilities than a major commercial offer due to the pleasant tree-lined street when compared to the high activity centred on New South Head Road (Exhibit M, [79]). 5. The projected increase in commercial space in the Double Bay centre is significant and will more than offset the reduction in commercial space on the subject site (Exhibit M, [74]). 6. Assuming an occupancy rate of 2.2 persons per apartment, the proposed development could accommodate 33 residents who will collectively generate around $726,000 in retail spending annually which will be partly directed to local businesses.
The experts are agreed that the proposed development, if approved, will not, in and of itself, materially impact the overall commercial viability of the Double Bay centre as a whole (Exhibit 5, [101]), and that the addition of residential development on the subject site has the potential to marginally add to the viability of businesses operating in Double Bay (Exhibit 5, [102]).
As the proposal before the Court is for shop-top housing, being a permissible use in the B2 zone, Ms Reid submits it cannot be inconsistent with the objectives of the zone as it falls within the range of permissible uses in the Land Use Table.
In support of which, the Applicant submits that I should have regard to the principles established by Preston CJ in Nessdee Pty Limited v Orange City Council [2017] NSWLEC 158, where his Honour held that an objective of the zone which provided for a range of uses was 'declaratory' of those uses found in the Land Use Table, identified to be permissible uses with or without consent.
Furthermore, as held by McClellan in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 at [117] ("BGP Properties"), weight must be given to permissible uses and planning decisions must generally reflect an assumption that development which is consistent with the zoning will be permitted.
In the alternative, the Respondent submits that for the objectives to be considered merely 'declaratory' would give no work for the objectives to do as the permissible uses would speak for themselves. Furthermore, in considering the proposal's consistency with the zone objectives, consideration must be had for the provisions of the WDCP which include, relevantly: 1. Part D5.1.2 which, in its chapeau, applies to development that requires development consent to the effect that "Generally this will be mixed use retail, business, office and/or residential development…" 2. Part 5.1.3 contains objectives which include, relevantly: O3 To encourage a diverse mix of uses in the Double Bay Centre and maintain retail uses at ground level … O6 To preserve and enhance the diversity of uses in the Double Bay Centre. … 1. Part 5.3.2 of the WDCP contains key strategies for the Double Bay centre, including to "foster the existing mix of uses of the centre such as hotels, retail and commercial and upper level residential" that is not achieved by the loss of 1,010m2 of commercial space, and provision of only 169m2 of retail or business space at ground floor. 2. The chapeau, objectives and controls under 'Part 5.6.2 Use' in the following terms: The distinctive mix of small scale shops, boutiques, restaurants, cafes, hotels, commercial premises and the like in the Double Bay Centre creates a friendly street environment that caters for the daily needs of the centre's users and creates an attractive environment for visitors. Continuous ground level retail frontage offers the benefits of safety, commercial activity and street life. The provision of mixed development can make a significant contribution to the local character, providing street surveillance and after hour activity in the centre. Previously there was very little residential use within the Double Bay Centre. Development in the last 10 years has tended to be mixed use, with ground floor retail with residential above. Residential development is encouraged within the centre to: increase the areas activity and vibrancy at night; encourage the provision of a range of retail services, particularly food stores; and reduce the reliance on cars to access the centre. … Objectives O1 Encourage upper storey residential development within the centre to enhance the cosmopolitan character of the Double Bay Centre. O2 Encourage mixed use development to reduce transport and travel requirements. O3 Encourage the continuation of retail and commercial uses at street level in the centre. O4 Encourage first floor retail and commercial use. … Controls C1 Design for a mix of uses within buildings. …. C3 Design for retail, commercial and community uses at ground and first floor levels. Consider design solutions that promote retail, commercial use at first floor level such as galleried arcades.
In essence, the Respondent argues that it is the failure of the Applicant to incorporate office-based commercial space above the ground floor level that offends the provisions of the WDCP and so is inconsistent with the relevant zone objectives at [42] which after all is the principal purpose of a development control plan according to s 3.42(1)(c) of the EPA Act.
Whereas the Applicant relies on s 4.15(3A) of the EPA Act inasmuch as the consent authority, or the Court on appeal, must not set more onerous standards with respect to those standards in the WDCP with which the proposed development already complies. As the WDCP merely encourages first floor retail and commercial use (See Part 5.6.2, O4), by the consideration of design solutions relating to commercial space at the first floor level (Part 5.6.2, C3), the Court would be imposing more onerous standards if it were to dismiss the appeal on that basis.

Consideration

Adopting, as I do, the observation of McClelland CJ, as he was then, in BGP Properties that greater weight should be given where the zoning and range of permissible uses is more specific and confined, I consider the land use table applicable to the B2 zone to be broad in its embrace of permissible uses, and in the wording of the first zone objective.
The objective seeks a "range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area". In so doing, it nominates four broad categories of use that are promoted in the service of three distinct user groups: residents, workers and visitors.
It is of some note that while upper level residential is desired by objective O1 and to a lesser degree, Control C3 of Part 5.6.2 of the WDCP, 'residential' is not a nominated use within the zone objectives, other than at the sixth objective, to seek development of a scale and type that is compatible with the amenity of the surrounding residential. However there is no dispute that residential use is permitted and desired.
I accept that the first and second zone objective is declaratory, and should be read in conjunction with the permissible uses, because requiring all of the uses nominated in the first zone objective on a single site, presumably with the aim of servicing all of the user groups listed, would in my view, have the potential to frustrate object 1.3(c) of the EPA Act to promote the orderly and economic use and development of land.
The zone objective is for a range of uses to be provided in the zone. The Macquarie dictionary defines 'range' as follows: "noun 1. the extent to which, or the limits between which, variation is possible: the range of prices for a commodity"
Viewing the first zone objective as a statement of the extent to which variation is possible in the uses nominated for the site, I conclude that the uses evident in the proposal are within an acceptable range as the proposal comprises tenancies that are suited to retail and business, but does not attempt to provide entertainment or community uses on the site. In arriving at this conclusion, I accept Mr Quick's evidence that the tenancies shown on the ground floor, while small, would suit uses that could be defined as 'business' for the purposes of the zone objectives.
The second zone objective, which Mr Perdigao believes has been failed, encourages employment opportunities in accessible locations. The two tenancies addressing Bay Street, and one addressing Gumtree Lane will provide spaces in which employment can be found. Furthermore, I accept the evidence of the experts that the residential use is likely to generate employment in home-based services, as well as demand for local goods and services in the Double Bay centre.
In relation to the fourth zone objective, "To attract new business and commercial opportunities", I accept Ms Reid's submission that the term 'new' should be given its common usage, and that on this basis new business will be attracted to a modern building once completed.
While I acknowledge that the proposal substantially reduces the quantum of area of office-based commercial space on the site, I accept the Applicant's submission that, in the absence of a particular formula or incentive prescribed in the WLEP, failure by the Applicant to provide a specific quantum of one of the four uses nominated in the first zone objective should not be a reason to warrant refusal, provided the design of the project results in acceptable environmental impacts (BGP Properties at [118]).
The proposal, comprising ground floor spaces suited to retail, or small commercial tenancies, with residential over - shop top housing - is a permissible use that is not, of itself, incompatible with the zone objectives. And for the reasons set out at [35(3)], I am satisfied that there are no adverse environmental impacts arising from the proposal.
The Respondent relies on Mr Leyshon's evidence to suggest that the existing tenants of the commercial space on the site may not find alternative accommodation within the Double Bay centre, and submits that the Court cannot be certain that new development, already approved on other sites in the area, will proceed. As a consequence, commercial activity will be lost to the Double Bay centre which is inconsistent with the fourth zone objective.
However, the experts' oral evidence is that the likely effect of any deficiency in the quantum of commercial space in the Double Bay centre, as perceived by the market, would create the very conditions needed to hasten the delivery of new commercial space. As I understand their position, it is constraint in the quantum of supply of commercial space, if coupled with a consistent or growing demand for it, that will firstly increase rental yield on existing commercial space in the area, before secondly, stimulating the market to increase supply.
In relation to such things, I accept the Applicant's submission that calibrating the preferred mix of uses in a town centre is best suited to strategic planning through the design of incentives and dis-incentives, published strategies and other formal and informal assistance that may stimulate the activity desired by a Council in an area.
However the WLEP is silent on incentives that would signal to the market its intent to promote commercial office space as it does, for example, in cl 4.4A which provides an increased floor space ratio to those sites marked 'Area 1' with the stated objective to "encourage the development of prominent corner buildings in Double Bay". The lack of such a provision in relation to office-based accommodation lends weight to the Applicant's argument that the Council seeks no more than to 'encourage' commercial space at the first floor of development.
I accept the Applicant's submission that, pursuant to s 4.15(3A) of the EPA Act, the Court cannot set more onerous standards with respect to those standards in the WDCP that encourages first floor retail and commercial use, by the consideration of design solutions relating to commercial space at the first floor level. As the proposal is otherwise in substantial conformity with the provisions of the WDCP, the Court would be imposing more onerous standards if it were to dismiss the appeal on the basis that consideration, having been given, resulted in an otherwise complying proposal but for this aspect.
Furthermore, while the proposal may be said to be at odds with objective O4, Part 5.6.2 of the WDCP in failing to provide first floor retail and commercial uses, the proposal is entirely consistent with objective O1, Part 5.6.2 in providing upper storey residential development.
For the reasons set out above, I conclude that the proposal is consistent with the zone objectives. As I am also satisfied that the proposal is consistent with the objectives of the height control, I have formed an opinion of satisfaction that the proposal will be in the public interest as required by cl 4.6(4)(a)(ii) of the WLEP, and that the Secretary's concurrence may be assumed in the particular circumstances pursuant to cl 4.6(4)(b).
In arriving at this opinion of satisfaction, I also consider whether approval of the proposed development would result in an undesirable precedent.
The proposal is for a permissible use that complies with all development standards, apart from the breach of the height control. As I consider there to be grounds to contravene the height control, the proposed development cannot be said to be of itself objectionable. Furthermore, as the experts agree the proposed development will not materially impact the overall commercial viability of Double Bay centre, and that the addition of residential will marginally add to the viability of businesses operating in Double Bay, I am satisfied that the development is in the public interest and warrants the grant of consent.

Orders

The Court orders that: 1. The appeal is upheld. 2. The Applicant's written request pursuant to clause 4.6 of the Woollahra Local Environmental Plan 2014 seeking to justify the contravention of the development standard for the height of buildings under clause 4.3 of the Woollahra Local Environmental Plan 2014 is upheld. 3. Development consent for Development Application No. DA33/2018/1 seeking demolition of existing structures and construction of a new five (5) storey shop-top housing development, containing 15 apartments, three ground floor level retail spaces, two landscape rooftop gardens and car parking with vehicular access via Gumtree Lane is granted, subject to conditions of consent at Annexure 'A'. 4. All Exhibits are returned except for Exhibit B, C and D. ………………………… T Horton Commissioner of the Court Annexure A (466 KB)

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: 19 February 2020

(2007) 156 LGERA 446

(2004) 138 LGERA 237

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