Wimbledon 1963 Pty Ltd v Northern Beaches Council

Cases Cited: Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited: Pittwater Development Control Plan 2021

Category: Principal judgment

Parties: Wimbledon 1963 Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation: Counsel:
A Galasso SC (Applicant)
A Seton (Solicitor)(Respondent)
Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2025/148057

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by Wimbledon 1963 Pty Ltd (applicant). The appeal was lodged based on the deemed refusal of an application being considered by Northern Beaches Council (Respondent). The application subject of the appeal is Development Application DA2024/1708, lodged with Northern Beaches Council, on 8 January 2025.

2. The development application seeks development consent for the demolition of the existing dwelling and associated structures, construction of a new dwelling and swimming pool, plus landscaping, at 2A Allen Avenue, Bilgola Beach. The land is legally identified as Lot 20 in DP 11978 and Lot A in DP 379490 (Site).

3. The Court arranged a conciliation conference between the parties, under s 34AA(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act). This was held on 25 September 2025. An agreement between the parties was not reached and the conciliation conference was terminated. The matter proceeded to hearing on 25-26 September and 3 November 2025. I presided over the hearing, and this judgment reflects the outcomes of that process.

4. I have concluded, for the reasons set out below, that the merits of the matter warrant the appeal being upheld, and consequently, that the development application should be determined by way of granting of development consent.

The Site and locality

5. The land is trapezoidal in shape with a street frontage of 18.288m and a maximum depth of 48.033m. This results in an overall surveyed area of 850.38m². The Site slopes down from the rear (north west) to the front (south east) by approximately 9.0 metres.

6. An onsite view was undertaken at the commencement of the appeal process. This inspection included observations from experts participating in the proceedings. The Site view also included an inspection of existing buildings on the Site, viewing other properties within the immediate vicinity as well as walking around the immediate locality.

7. A particular emphasis during the site inspection was the potential visual impact, the potential for view loss, and the proximity of each of the properties and structures in terms of geotechnical issues. The experts made observations about potential impacts that might result from the proposal.

Public Submissions

8. The development application was notified to adjoining and surrounding properties between 20 January 2025 to 3 February 2025. Forty (40) submissions were received and all but two (2) of the submissions objected to the proposal. Several oral submissions were made at the onsite view. In addition, several nearby properties were inspected, and observations made, about the matters before the court.

9. The written and oral submissions raised concerns that are broadly categorised as follows:

10. Built form non-compliance, bulk and scale

11. Excavation, groundworks and geotechnical hazard

12. Landscaping

13. View loss

14. Privacy (visual and aural)

15. Solar access

16. Character of locality

17. Stormwater management and drainage

The Assessment Framework

Pittwater Local Environmental Plan 2014

10. The Site is zoned C4 Environmental Living under the Pittwater Local Environmental Plan 2014 (PLEP). Development, for the purposes of dwelling houses, is permissible in the zone. The relevant objectives of the zone, to which regard must be had in determining the development application (cl 2.3, PLEP), are:

11. To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

12. To ensure that residential development does not have an adverse effect on those values.

13. To provide for residential development of a low density and scale integrated with the landform and landscape.

14. To encourage development that retains and enhances riparian and foreshore vegetation and wildlife corridors.

15. The site is subject to several jurisdictional controls contained with the PLEP. Whilst there are a number of contentions in this matter, the focus was on several jurisdictional issues arising from clauses in the PLEP. These relate to height, earthworks and geotechnical hazards. The relevant clauses are:

4.3 Height of Buildings

(1) The objectives of this clause are as follows—

(a) to ensure that any building, by virtue of its height and scale, is consistent with the desired character of the locality,

(b) to ensure that buildings are compatible with the height and scale of surrounding and nearby development,

(c) to minimise any overshadowing of neighbouring properties,

(d) to allow for the reasonable sharing of views,

(e) to encourage buildings that are designed to respond sensitively to the natural topography,

(f) to minimise the adverse visual impact of development on the natural environment, heritage conservation areas and heritage items.

12. The development does not meet the development standard contained in cl 4.3 of the PLEP relating to the Height of Buildings. As a result, there is a threshold decision as to whether the written request, that seeks to vary the development standard, should be upheld, as allowed for in cl 4.6 of the PLEP.

13. The Site is also the subject to the provisions of cl 7.2 of the PLEP – Earthworks. The clause sets out mandatory matters to be considered, in cl 7.2(3), when deciding whether to grant development consent for earthworks:

(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

(b) the effect of the development on the likely future use or redevelopment of the land,

(c) the quality of the fill or the soil to be excavated, or both,

(d) the effect of the development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development,

(i) the proximity to and potential for adverse impacts on any heritage item, archaeological site or heritage conservation area.

14. Clause 7.7 of the PLEP relates to Geotechnical Hazards. The potential geotechnical outcomes, and the expert reports underpinning those outcomes, were the basis of much of the evidence before the Court. The parties disagreed as to compliance with these two jurisdictional matters. Clause 7.7 (3) sets out matters that must be considered, as follows:

(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider the following matters to decide whether or not the development takes into account all geotechnical risks—

(a) site layout, including access,

(b) the development’s design and construction methods,

(c) the amount of cut and fill that will be required for the development,

(d) waste water management, stormwater and drainage across the land,

(e) the geotechnical constraints of the site,

(f) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

15. Clause 7.7(4) then sets out matters that require the satisfaction of the consent authority prior to the grant of development consent:

(4) Development consent must not be granted to development on land to which this clause applies unless—

(a) the consent authority is satisfied that the development will appropriately manage waste water, stormwater and drainage across the land so as not to affect the rate, volume and quality of water leaving the land, and

(b) the consent authority is satisfied that—

(i) the development is designed, sited and will be managed to avoid any geotechnical risk or significant adverse impact on the development and the land surrounding the development, or

(ii) if that risk or impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that risk or impact, or

(iii) if that risk or impact cannot be minimised—the development will be managed to mitigate that risk or impact.

Pittwater Development Control Plan 2021

16. The Pittwater Development Control Plan 2021 (PDCP) provides guidance on the development of single dwellings. Section A4.3 of the PDCP deals with the Bilgola Locality. The desired future character is set out in this section. It is described, in part, as:

Desired Future Character:

The Bilgola locality will remain primarily a low-density residential area with dwelling houses a maximum of two storeys in any one place in a landscaped setting, integrated with the landform and landscape….

and, in respect to the Bilgola Beach area;

The Bilgola Beach Area:

Is a visual catchment that is environmentally significant and extremely susceptible to degradation. Its unique local and regional significance requires protection and preservation, and further investigation for listing as an environmental protection and/or conservation area. Strict development controls will apply to this area (including a reduced building height limit to 8m) to ensure that its unique qualities are preserved through development that is sensitive to the area's characteristics. (P**DCP, Part A4.3, p2/5)

17. The future desired character statement for the locality refers to low density dwelling houses that integrate with the landform. The controls seek to restrict dwellings to two storeys in height (as measured in any one location). I observe that this does not preclude a three level house. The site is not within a Visual Protection Area.

18. The character statement outlined for Bilgola Beach is more general than other areas, such as the Pittwater Foreshore Area, which has specific words and controls around bulk and scale. Heights are measured relative to tree heights and colours and materials are key components of built form outcomes.

19. A further relevant Section of the PDCP in this appeal is Section D 3.7 which deals with Side and Rear Setbacks. The amended statement of facts and contentions says that the proposal is inconsistent with the following outcomes:

• To achieve the desired future character of the Locality.

• The bulk and scale of the built form is minimised.

• Equitable preservation of views and vistas to and/or from public/private places.

• To encourage view sharing through complimentary siting of buildings, responsive design and well-positioned landscaping.

• To ensure a reasonable level of privacy, amenity and solar access is provided within the development site and maintained to residential properties.

• Vegetation is retained and enhanced to visually reduce the built form.

20. Section D3.9 Building Envelopes is also an issue in this appeal. This section deals with Building Envelope controls. The respondent says that the Building envelope outcomes are relevant:

• To achieve the desired future character of the Locality.

• To enhance the existing streetscapes and promote a building scale and density that is below the height of the trees of the natural environment.

• To ensure new development responds to, reinforces and sensitively relates to spatial characteristics of the existing natural environment.

• The bulk and scale of the built form is minimised.

• Equitable preservation of views and vistas to and/or from public/private places.

• To ensure a reasonable level of privacy, amenity and solar access is provided within the development site and maintained to residential properties.

• Vegetation is retained and enhanced to visually reduce the built form.

The Issues

21. The primary issues centre around the disagreement as to whether a three/four storey development is acceptable. The issues are expressed as concerns relating to bulk and scale, overall height, character, setbacks, building form, view loss and overshadowing. A related concern is the geotechnical and excavation issues that arise from the proposed design solution for the development.

22. The statement of facts and contentions had an extensive list of issues to be considered. A few of these issues were resolved between the parties either before, or during, the hearing process. They were primarily landscaping and flooding which I will deal with first.

Is there an unacceptable flooding impact?

23. The parties engaged the assistance of experts in flooding to provide evidence to the Court. Mr V Tulk (applicant) and Mr Hughes (respondent) prepared a joint report, marked as Ex 10. The experts agreed that the outcome in amended drawings (drawing 2012H0040-SWDA2.1) would resolve all of the flooding contention. The flooding experts proposed further minor changes which have now been incorporated in the amended drawing sets. The respondent no longer pressed the flooding contention based on these agreed outcomes.

Is the landscaping satisfactory?

24. The parties engaged landscape experts to provide evidence to the Court. Mr Scrivener (applicant) and Mr Tramonte (respondent) met and prepared a joint report (Ex 9) responding to Contention 7 of the SOFAC’s. The experts agreed certain outcomes that resolved the landscape issues. The agreement of the experts was based on changes to the landscape plan. They also agreed certain conditions of development consent, if it were to be granted. The applicant accepted that the current tennis court would be altered to make way for the provision of additional soft landscaping, in the form of a tennis court, with a soft surface to achieve compliance with the soft landscaping requirement.

Is the excavation reasonable?

25. There are two aspects to the excavation issue, both of which are jurisdictional. In the first instance the Court, as the consent authority, must have considered a number of matters. These are set out in cl 7.2 relating to earthworks and cl 7.7 (3) relating to geo-technical hazards of the PLEP. Consideration of the matters in cl 7.7 (3) of the PLEP must lead the consent authority to be satisfied about the outcomes in cl 7.7(4) before a development application can be determined.

26. The Court was assisted with this issue by two geo-technical experts, Mr Davies for the applicant and Mr Mortimer for the respondent. They prepared various reports that were filed with the Court. This includes, but is not limited to, the following:

27. Geo-technical repots prepared by Crozier Geotechnical Consultants for the development application.

28. Geo-technical reports by neighbours by Fair Engineers.

29. Shoring Concept plans 1 July 2025.

30. Updated geo-technical reports prepared by EI Australia (dated 5 September 2025 and 10 September 2025).

31. Excavation Methodology Report 22 September 2025.

32. Finite Analysis Report 22 September 2025.

33. Experts’ commentary through the joint reporting process and during oral evidence by the experts. (Ex’s 11 and 12).

34. Further expert comments from Mr Mortimer (Ex 15)

35. In particular, the joint reports prepared by Davies and Mortimer (Ex’s 11 and 12) set out an assessment of cl 7.2 and cl 7.7 of the PLEP.

36. In summary, it was generally agreed by the experts that the development proposal could be managed in terms of the geo-technical, excavation and construction phases. This included ground water outcomes when using a contiguous pile system. The experts agreed that the ground water would settle after construction, and having done so, would travel around the structure and then proceed back to a pre-development flow. It was as a result of the conclusions, relating to groundwater, that the experts agreed that the proposed development would not pose an obvious threat to any coastal wetlands or littoral rainforest.

37. Whilst there was agreement about construction program and design, Mr Mortimer remains concerned about the peripheral impact of excavation, in geo-technical terms, on potential development of adjoining sites. In particular, he was concerned that if the uphill neighbour was to propose a building close to the common boundary, then there might be significant issues.

38. In response, it was the applicant position that this situation already exists by virtue of the location of the existing house and the significant change in level at the western boundary. The applicant also noted the PDCP setback requirements for rear boundary structures.

39. Mr Davies did not agree with the concerns of Mr Mortimer and the respondent, noting the good condition of the existing retaining wall, the solid nature of the existing wall and design solution for further excavation. Mr Davies says that the risk has been minimised by offsetting the new excavation from the current boundary.

40. In making my decision, I have had regard to the matters listed in cll 7.2(3) and 7.7(3) of the PLEP in two ways. Firstly, the applicant has provided geo-technical reports covering these issues, and as a result, I have been able to review various assessments of the required issues. Secondly, the cross examination of these experts was extensive and provided a rigorous assessment of the required matters listed in the PLEP.

41. In respect to cl 7.2(3) I note the evidence of Mr Davies indicates the lack of impact on drainage patterns and soil stability. I accept Mr Davies opinion that the risk to the adjoining property has been minimised by increasing the setback and utilising a particular construction method.

42. The applicant has also made not that the excavation of the site is limited to the location of the existing dwelling, thereby minimising the impacts on the future use of the land. These cumulative decisions on design will minimise any amenity impact to adjoining properties by increasing the setbacks for further excavation and minimising the footprint of the new dwelling to being generally within the footprint of the existing dwelling.

43. The potential for disturbing relics, adverse impacts on any waterway, drinking catchment or environmentally sensitive area have been considered, and the result of those deliberations are, that the proposal is satisfactory. I am therefore satisfied, that between the documented design and the proposed conditions of development consent, that the requirements of cl 7.2(3) have been met.

44. The extent of excavation on the site overlaps with the geo-technical considerations. As outlined in par 15, there are a further set of matters to be considered around geo-technical risk. In responding to these requirements, the applicant has prepared a number of documents addressing the matters in cl 7.7(3).

45. The applicant’s planner, Mr Boston, provided evidence around the decision to re-build the new dwelling in the location of the existing dwelling and that doing so would reduce the impacts that would arise from a new dwelling. This evidence was combined with the evidence of Mr Davies around the design and construction methods, waste water management and drainage which suggest that the proposed location is acceptable.

46. Mr Mortimer says (at p4 of Ex 18) that the proposed development can be achieved and the risks managed in an engineering sense. He has a lingering concern over the long term geo-technical impacts but these are focused on the potential additional construction costs to neighbours. There is no evidence to confirm what these costs might be and I note that Mr Davies questions the ability to understand future development of neighbouring properties.

47. The parties have come to an agreement around the matters in cl 7.7(4) of PLEP, such as flooding and stormwater solutions. In finding that the development meets the test in cl 7.7(4) (a) of the PLEP, I reiterate that Mr Mortimer and Mr Davies agreed that the ground water running through the site will return to pre-redevelopment rates after construction. As a result of the evidence, I am satisfied that the matters in cl 7.7(4) (a) have been met.

48. In respect to cl 7.7(4)(b) of the PLEP, I only need to be satisfied in respect to one of the matters listed (see par 15). In this matter, it is the evidence of Mr Davies that the development is designed to avoid any geo-technical risk. This is achieved by further setbacks to the excavation on the western boundary and the proposed contiguous pile construction solution (a tanked basement).

49. On the basis that there is broader agreement between the experts as to the nature of the engineering construction, I am satisfied that the development is designed to minimise any geo-technical risk, or significant adverse impact, but that it is likely that the design of the proposal will avoid any geo-technical or adverse impact on the development or the surrounding development.

50. The evidence indicates that the excavation and geo-technical uses are not an impediment to the granting of development consent, subject to the relevant agreed conditions.

Is there an acceptable view outcome?

43. The application was reviewed by two view assessment experts, Mr Bonus (applicant) and Ms Brodbeck (respondent). The applicant provided detailed view analysis, both as part of the development application, and as part of the joint report exercise. The view experts also participated in a joint report process in conjunction with the planners. The two joint reports are Ex’s 7 and 17.

44. In the judgment of Roseth SC in Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 there are some principles that can be used to guide view loss assessments. Mr Bonus has undertaken reviews for both No. 8 and No. 10 Serpentine Ave in accordance with this approach. The conclusions reached are that there is a minor impact to two lower level views from 8 Serpentine Avenue.

45. In addition to the view loss assessments, the parties were taken to each level of No. 8 and No. 10 Serpentine Avenue, to make observations regarding potential view loss. In the initial view loss assessments, Ms Brodbeck considered that the view loss, which was in her opinion moderate at the lower level of No. 8 Serpentine and, minor at No. 10 Serpentine, was unsatisfactory. The two upper levels of No. 8 Serpentine remain largely unaffected by the proposal as do the upper levels of No. 10 Serpentine.

46. The respondent’s position on views is that, as the proposal does not comply with the desired future character outcome of two storeys, the view loss is unnecessary, and therefore unacceptable. The respondent’s experts take this position irrespective of the agreement that the impacts are minor to moderate and only on the lower levels. The respondent’s position is based on a more sensitive approach to view loss when there are non-compliances with the PDCP controls, particularly the two storey limit.

47. I note that the respondent’s position is that the storeys need to be offset so that they are no more than 2 storeys “at any one point”. In this scenario, simply pulling the lower level forward, to achieve compliance, would not change the built form at the upper level and therefore not change the potential impacts from the development. I also note that the proposal, at the critical view loss locations, is compliant with the statutory height limit. It is also evident from the photomontages that the lower levels will not be visible from a majority of the surrounding visual catchment.

48. After reviewing the evidence of both experts, and having the benefit of the site view, I am swayed by the evidence of Mr Bonus. The minor view loss from the lower level for 8 Serpentine Ave is offset by the substantive views that are obtained from the primary living spaces on upper levels. I also agree with both experts, that the view impact to 10 Serpentine Ave is at best minor, if not negligible. There are ample spaces within the dwelling from which the view impacts is negligible.

49. I have also noted the evidence of Mr Bonus, in the context of view sharing, that the views from the subject site are now impeded by the new development at 7-9 Allen Avene. In balancing view sharing, 2A Allen Avenue is unlikely to share the same substantive views that are retained at 8 and 10 Serpentine Avenue.

Is the scale of the proposed development visually unacceptable?

50. The planning experts did not agree as to whether the proposed dwelling has an acceptable visual presence or whether it was an appropriate design solution that would be consistent with the desired future character of the area. The respondent says that the “bulk” of a three/four storey building is inconsistent with the character of the area.

51. The PLEP provides some guidance for the assessment of the visual impact of a development. The PLEP sets out various objectives and puts in place a development standard relating to Height of Buildings (an 8.0m height limit). The experts provided opinions based on their own observations from the immediate vicinity of the site. The respondent, in particular, also turns to the character statement in the PDCP regarding a two storey height limit.

52. The predominant control in the PLEP, in respect to the character element, is the Height of Building development standard. The parties agree that the proposal exceeds that limit in an area of the eastern façade (a slab protrusion with associated balustrades, see Figure 2). The parties and the experts agree that the proposal, at the critical juncture for view impact, is compliant with the 8.0m Height of Building control.

53. As part of the view impact assessment, the parties were provided with photo montages of the proposed building from various locations. The respondent was concerned that the building could be “seen” from various locations around the public domain. In particular, the respondent says there is a small area in front of the property from where a three storey, possible four storey, form could be seen.

54. Mr Bonus provides an assessment of the visual catchment in Exh F as follows:

194. Bilgola Beach is located between two sandstone headlands and lies at the base of a semi-circular bowl. The headlands, perimeter ridge line and slopes are heavily forested, so the background of the visual catchment from headland to headland is predominately tree canopy. The slopes are also terraced to provide for roads, including Barrenjoey Road and The Serpentine, and free-standing dwelling houses which step down the slopes from the headland to the beach front. The base of this bowl is relatively flat, sandy and a with sub-tropical under story landscape punctuated by taller palms and taller again Pinus.

195. Due to this topography, when viewed from Bilgola Beach (View ID 1 and 8) the existing and proposed building envelope merges with the buildings and tree canopy immediately behind. Indeed, the proposed envelope can be difficult to distinguish from this background of tree canopy and other buildings. Hence, “red envelope” and “red outline” images have been provided to assist in identifying the change to each view resulting from DA2024/00148057 and to assess any visual impact resulting from that change. (Exh xx pages 62,63.

55. On review of these images, I concur with the assessment of Mr Bonus in that the replacement of the hipped roof form with a smaller flat roof would have a negligible impact on the visual character of the area. I do accept that the proposal will not add to the extent of built form visible, in anything but a minor way, from key locations around the foreshore of Bilgola Beach.

56. The photos of the existing development, and the photo montages, demonstrate that the proposed development is not easily identified as more than two storeys from critical viewpoints. In particular, the view back from the Bilgola Beach area only shows the top of the proposed building, which is agreed as being compliant with the statutory control for height.

Figure 1 - Photo of existing dwelling, Ex 20, page 3

57. Whilst the appearance of the proposed dwelling from the street will be more significant, it is not so different to the character and form of surrounding development that it could be said to be uncharacteristic of the built form. In contrast, the photos and view of 2-4 Bilgola Ave (Exh 7, p 19, Figure 8), demonstrates that buildings that appear three storeys are part of the character of the area. In addition, the non-compliant height elements are contained within the envelope of the façade when view from in front of the property.

58. Limiting a building to two storeys does not remove the visual impression of a three level building, it merely offsets the upper and lower levels. As an example, adding a floor to the tennis court area in Figure 1 would do nothing to dimmish the scale of the building but would achieve technical compliance with the two storey control.

59. As a result of the above evidence, I have reached the conclusion that the proposed building does not detract, in any significant way, from the desired future character of the area. The proposed development will sit within a variety of built forms, especially when viewed from key locations around the foreshore area.

Is the extent of overshadowing acceptable?

60. The town planning experts agree that the proposal provides a reasonable level of privacy and solar access. Ms Sarkissian contemplates that a better outcome might be achieved with some relocation of the built form. In particular, the planners agree that the “view from the sun” shadow diagrams dated 5 September 2025 demonstrate that the private open space of adjoining dwellings achieve the required 3 hours of solar access between 9am and 3pm on 21 June. I accept the evidence of the planners that the proposal provides an acceptable overshadowing outcome in its present form.

Is the Height of the Building acceptable?

61. A further jurisdictional matter is the non-compliance with the Height of Building development standard. As there is an exceedance of the allowable building height, the applicant has prepared a written request to vary the development standard.

62. A written request pursuant to cl 4.6 of the PLEP was prepared by the applicant. It sets out how the development meets the relevant objectives that underpin the development standard. Each of the objectives of the Height of Building standard are considered along with the zone objectives and environmental grounds that might justify a contravention of the standard.

63. The parties agree that the building is non-compliant with the Height of Buildings development standard. A point of disagreement is whether the bulk and scale of the proposed development, that manifests itself from that non-compliance, is acceptable. The bulk and scale issues also overlap into desired future character issues.

64. The following extract (Figure 2) from the written request to vary the development standard shows the extent of height non-compliance.

Figure 2 - Extract from Ex E, cl 4.6 PLEP written request to vary development standard.

65. Figure 2 highlights those areas of the proposed building which protrude through the 8.0m Height of Building envelope. The written request notes that the elements that make up the height breach do not contribute to the overall height and scale of the development to the extent that they render the development as being inconsistent with the desired future character of the locality. The written request includes a number of diagrams and photo montages that support the conclusions reached.

66. The written request demonstrated that the objective to minimise overshadowing is achieved. The application includes overshadowing documentation that demonstrated no overshadowing impact from the non-compliant elements of the building. Notably, the evidence notes that 3 hours of solar access will be maintained to the principal living room of 2 Allen Street.

67. The request also considered the objective seeking the reasonable sharing of views. The written request refers to the acceptable view sharing and visual catchment outcomes that the applicant considered acceptable. The written request outlines that there is an acceptable outcome in terms of view sharing. Noting my earlier comments on view sharing, I concur with these statements.

68. The request also notes that the area of excavation is generally limited to the area of the existing dwelling. The impact to the natural topography is minimised by limiting areas of excavation to areas already altered. This is in response to the objective to encourage buildings that are designed to respond sensitively to the natural topography. The applicant notes that the additional excavation provides for off street parking in a location that has minimal streetscape impacts as it is underneath the proposed dwelling.

69. The written request also deals with the environmental grounds that support the variation. The minimal disturbance to the topography of the land and the distribution of building height to achieve view sharing, are put forward as forming the basis of the environmental grounds. These grounds are supported by the applicant making observations as to the flexibility exhibited in the application of the Height of Building development standard in the locality along with the minor nature of the breach in this application.

70. On review of the material provided, I agree with the applicant that the written request provides the required justification to vary the Height of Building development standard. The reconstruction of the dwelling on the location of the current dwelling has a number of advantages that reduce view loss and other possible consequences of the development without creating any undue impacts.

71. The resulting breaches are minor in nature and a result of architectural elements that add to the dimension and character of the development. It has been demonstrated that it would be unreasonable and unnecessary to strictly adhere to the development standard and that there are sufficient environmental grounds to justify the small breaches by the architectural elements seen in Figure 2.

Are the side setbacks and building envelope outcomes acceptable?

72. The planning experts agree that there are non-compliances with some setback requirements and building envelope controls. The planners joint report (p 30 and 31 of Ex 7) provides historical photos and maps of the dwelling constructed at the rear of the site in the 1950’s.

73. The planners agree that the building does not comply with the building envelope controls and also agree that architectural drawing DA4-02 accurately reflect that non-compliance. The image extracts of these drawings are provided below.

Figure 3 - Extract DA4-02, Building Envelope, Diagram 01

Figure 4 - Extract DA4-02 Building Envelope, Diagram 02

74. Ms Sarkissian notes that the proposal presents excessive bulk and scale that is not commensurate with the existing and desired future character of the locality (para 96 onwards, Ex 7). In her opinion, there is no reason to retain the tennis court, presumably on the basis that a dwelling could be constructed elsewhere on the site or at least in compliance with the PDCP. In her view, there are a number of non-compliances in the proposal and this is indicative that the proposed dwelling is not suitable for the site. Ms Sarkissian is critical of the landscaping solution for the site.

75. In additional to the above, Ms Sarkissian concedes that the proposal provides a reasonable level of privacy and solar access within the development site and to residential properties. Despite this statement, Ms Sarkissian says that the scheme would perform better through a more skilful design and siting of the proposed development.

76. Mr Boston focuses on the objectives that underpin the setback and the building envelope controls. His evidence is that the objectives of the controls, such as character, streetscape, vegetation and amenity, are achieved, notwithstanding the minor variations to the DCP. Mr Boston notes the improvement in the landscape solution for the site.

77. I agree with Mr Boston, that the proposed variations to the setbacks and building envelope controls are minor and do not result in the development not meeting the objectives which are outlined in detail in the Joint Report. I also note Ms Sarkissian’s acceptance of the current scheme as being reasonable in respect to privacy and solar access.

78. The agreement of the parties in respect to the landscaped solution for the site also provides satisfaction that the landscaped based outcomes are met despite the proposed setbacks. As noted by the planners, the current site is devoid of significant vegetation. On that basis, an agreed landscape solution has to be a marked improvement and reflective that the setback and building envelope controls have not prevented that acceptable outcome.

Other Jurisdictional Matters

79. In reaching a decision on this matter, I have had regard to the required jurisdictional matters as outlined below.

80. The applicant has provided the required information to address the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC). The evidence of the planners confirms that the proposal does not involve removal of vegetation that would require specific consideration in the SEPP BC.

81. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) applies to the land. The applicant sets out in the Statement of Environmental Effects (SEE) (at S 4.4.1, page 41) how the development meets the requirements of the SEPP RH, in particular, Chapters 2 and 4.

82. Chapter 2 deals with Coastal Hazards by setting out a number of considerations relating to proposed development. This includes, broadly, access to the foreshore, views to and from the foreshore, the scenic qualities of the foreshore and heritage and cultural issues. The SEE sets out these criteria in greater detail. This includes consideration of s 2.12 of SEPP RH and an assessment as to whether the development will cause a coastal hazard.

83. Upon reviewing the SEE and considering various parts of the evidence that relate to these issues, I agree with the applicant in that the proposal is consistent with the requirements of the SEPP RH. I agree that the development will not erode the visual quality or amenity of the foreshore, result in undue overshadowing or significant loss of views or erode safe access to the foreshore.

84. In respect to contaminated land, I note the applicant’s assessment in the SEE that the existing dwelling has been the predominant land use for over 70 years. I am therefore reasonably satisfied that the proposed residential land use poses no contamination risk.

85. The applicant has provided information relating to BASIX as required by State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP). The respondent maintains that the applicant has not provided the requisite material as required by the Sustainable Buildings SEPP. The provided BASIX Certificate includes a quantified figure for embodied emissions as required by s 2.1(5) of the Sustainable Buildings SEPP. The score is -100 for materials associated with the development. These details satisfactorily resolve contention 15 in this matter.

86. PLEP, cl 2.3 sets out the zone objectives for the C4 Environmental Living zone (see par 10). The evidence in this matter has assisted in ensuring that I have had regard to the zone objectives in the assessment process. The visual impact assessment, the solar access and privacy assessments and the assessments of the context of the site all assist demonstrating, to my satisfaction, that the proposal is not inconsistent with the zone objectives.

87. PLEP, cl 5.10 – Heritage Conservation applies to the land. There are a group of Canary Island date Palms located in the road reserve near the site. The applicant prepared a SEE which addressed a number of the matters required for consideration. This included an assessment that the palms are located away from any construction zone and there the proposed development will have no impact on the trees. The SEE (at S 4.1.3, page 21) also notes the extent of physical separation between the trees and the proposed dwelling and concludes that there is no impact to the visual catchment of the trees.

88. The view analysis material also considered whether the proposed development would impact on views of the trees from surrounding properties, particularly No’s 8 and 10 Serpentine Ave. After attending the site and reviewing relevant drawings, I concur with the position of the applicant that there is little, if any, impact on these heritage items.

89. PLEP, cl 5.21 - Flood planning, applies to the land. The Respondent raised a number of concerns around the possible impacts resulting from the land being within the Low and Medium Flood Risk precincts. As such, the cl 5.21 of the PLEP and B3.11 Flood Prone Land of the PDCP apply.

90. Arising out of the joint report process the applicant provided additional material and made changes to the proposal to alleviate the concerns raised. The experts agreed a number of design changes along with proposed conditions for a development consent, should it be granted. The changes included:

a. In order to protect the basement from flooding, a solid barrier is to be constructed along the southern boundary of the tennis court, north of the driveway, at a minimum height of 0.3m above the surface of the tennis court. There are to be no gaps except for the gate access, which is to be located further east than the driveway crest.

b. The finished surface of the tennis court is to be no higher than 6.1m AHD.

c. In order to maintain the overland flow path from the upstream catchment, the gap in the wall along the northern boundary of the tennis court is to remain without being blocked or altered in any way. The gap in the wall is shown in the photos in Annexure C. This overland flow path is to be maintained in perpetuity (Ex ??, page 3, para 10).

91. I am satisfied that the matters raised in cl 5.21 of PLEP have been addressed by the parties and in particular, by the flooding experts. The proposal has now addressed the matters in cl 5.21 of PLEP, including minimising the risk to life and property, and that the proposal in acceptable in respect to flooding.

92. PLEP, cl 7.10 - Essential Services requires consideration of whether essential services are provided to the site. The current dwelling is provided with the listed services. I agree that the site can be serviced in accordance with the essential services requirement.

Conclusions

93. After a considered evaluation of the evidence, and an assessment of the matters for consideration in s 4.15(b) of the EPA Act, I have concluded that the proposal is acceptable.

94. The proposed dwelling achieves some outcomes that reduce the impacts presented by the current dwelling without creating significant new adverse outcomes. There has been significant work done around view loss issues, and amenity impacts, for which the evidence now indicates that the proposal is acceptable.

95. The extent of impact is broadly agreed, what is not agreed is whether that impact is acceptable. I have noted throughout this judgment that key areas of the proposed dwelling, which may impact on views and amenity, are generally not related to the areas for which a breach of the PLEP or PDCP is sort.

96. A further area is significant work was undertaken around the earthworks and geo-technical issues. The reasons outlined in this judgment lead to the conclusion that the proposed development is acceptable. The relevant experts agree that the groundwater will return to pre development flows and there is no dispute about the construction method. The remaining area is about risk management result from the excavation but the evidence suggests that this risk is minor and not sufficient to warrant rejecting the application.

97. I have reviewed the evidence relating to the desired future character. This includes the site inspection, photomontages and oral and written evidence. I have accepted the argument that the proposed upper two levels of the dwelling would be in much the same position as the existing dwelling (and perhaps an overall reduction in view loss at the upper level). The introduction of a habitable level underneath the upper levels is not so visually transformative as to change the character of the area nor impact on the desired future character. The significant setback of the dwelling, its current and historical location, and the proposed vegetation all make this an acceptable outcome.

Orders

98. The Court orders that:

99. The appeal is upheld.

100. Development Application DA2024/1708 for demolition of the existing dwelling and associated structures, construction of a new dwelling and swimming pool, plus landscaping, at 2A Allen Avenue, Bilgola Beach, legally known as Lot 20 in DP 11978 and Lot A in DP 379490, is determined by the grant of development consent, subject to the conditions in Annexure A.

101. The exhibits are to be returned with the exception of Exhibits 4,14, N and O.

S Harding

Acting Commissioner of the Court

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Annexure A (314 KB, pdf)