Yarranabbe Property Pty Ltd v Woollahra Municipal Council

Land and Environment Court (NSW)|2020-08-13

Judgment

COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Woollahra Municipal Council's refusal of Development Application No. DA233/2018 (DA).
The DA, with modifications incorporated into amending plans, seeks consent for alteration and additions to the existing residential flat building at 77-81 Yarranabbe Road, Darling Point (the site).
The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 13 August 2020 and 14 December 2020, at which I presided. Following the conciliation, the parties filed an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.
This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions.
The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings in a "Jurisdictional Statement" dated 21 December 2020 and a follow-up statement dated 19 January 2021. The parties also referred to Council's assessment report to the Woollahra Local Planning Panel dated 6 February 2020 ('Council assessment report') to assist in responding to relevant jurisdictional matters. Regarding jurisdiction, and noting this advice and previous oral advice, I am satisfied in regard to the matters listed below.

Woollahra Local Environmental Plan 2014

The Site is located within the R3 Medium Density Residential Zone in Woollahra Local Environmental Plan 2014 ('WLEP'). The development is permissible in the zone.
Below I reproduce the objectives of the R3 zone, which I have had regard to, mindful of cl 2.3(2) of WLEP. • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.
The proposed development would contravene both the height of buildings and floor space ratio ('FSR') development standards in WLEP. The contravention of development standards is considered below.
In regard to cl 6.1 and acid sulfate soils: I accept the comments from the Council assessment report reproduced relevantly below (from p36 of the Council assessment report), and conclude there is no requirement for an acid sulfate soils management plan in this instance. "The subject site is within a Class 5 area as specified in the Acid Sulfate Soils Map. However, the subject works are not likely to lower the water table below 1.0m AHD on any land within 500m of a Class 1, 2 and 3 land classifications. Accordingly, preliminary assessment is not required and there is unlikely to be any acid sulfate affectation. It is therefore acceptable with regard to Part 6.1 (sic)."
I have given consideration to the required matters at cl 6.2(3) in regard to earthworks. I accept the comments from the Council assessment report in regard to cl 6.2, the conclusions of which are reproduced below (from p37), and conclude that issues relating to earthworks are adequately addressed in the conditions of consent (see for example conditions A3 (in regard to the Geotechnical Report by JK Geotechnics), C6, D3 and F3(a)). "The relevant matters for consideration under (cl 6.2(3)) of the Woollahra LEP 2014 can be satisfactorily addressed via the imposition of conditions of consent, and the proposal, is therefore considered to be acceptable with regard to the provisions of Part 6.2 of the Woollahra LEP 2014."
In regard to cl 6.4, neither the existing residential flat building nor the proposed alterations and additions thereto are within Foreshore Area 12 or 30. In accordance with the provisions of subcll (2)(a) and 2(b), the works located within Foreshore Area 12 are limited to landscaping, fencing and refurbishment of the existing swimming pool and refurbishment of part of the existing cabana. In regard to subcl (4), I am satisfied in regard to the following matters relevantly: 1. The development will contribute to achieving the objectives for the R3 Medium Density Residential zone by providing for the housing needs of the community within a medium density residential environment. 2. The appearance of proposed structures from both the waterway and adjacent foreshore areas will be compatible with the surrounds because of its minor nature and the characteristics of development in the immediate vicinity on the foreshore. 3. The development will not cause environmental harm in regard to the matters listed at subcll 4I(i)-(iii) because of the design characteristics, including minor nature of works relating to the foreshore and conditions of consent which have been imposed. 4. The development will not cause congestion of, or generate conflicts between, people using open space areas or the waterway because of the lack of opportunity for such conflict to arise in this case. 5. Opportunities to provide continuing public access along the foreshore and to the waterway will not be compromised because the subject area is privately owned land. 6. Any historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the land on which the development is to be carried out and of surrounding land will be maintained because of the minor nature of the changes proposed, relevantly.
Further, I would note I have given consideration to the matters listed at cl 6.4(5).

State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development

The proposed development comprises a substantial redevelopment or the substantial refurbishment of an existing residential apartment development. State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development ('SEPP 65') applies and requires consideration and demonstration of the design quality of the development.
In accordance with cl 50(1A) of the EPA Regulation, qualified architect Koichi Takada has provided a statement explaining how the development's design addresses the design quality principles (at Schedule 1 of SEPP 65) and how the objectives of Parts 3 and 4 of the Apartment Design Guide ('ADG') have been achieved. The documentation included a letter dated 21 September 2020 headed "Design Verification Statement - 77-81 Yarranabbe Road Darling Point" and further undated statement explaining to a numerical non-compliance with and ADG control relating to ceiling heights. The documentation was behind Tabs 13 and 12 respectively in the bundle of documents accompanying the s 34 agreement filed 21 December 2020. The design verification statement indicates the design was directed by Mr Takada and that the design achieves the design quality principles.
I have considered the amended development application, including the amended architectural drawings, and the design verification statement. I have also noted the commentary from Council's design expert contained in the Council assessment report (p18 and seq) which was generally supportive of the then design.
I have taken into consideration the design quality of the proposed development (as amended), when evaluated in accordance with the design quality principles, and the Apartment Design Guide (as required by cl 28(2) of SEPP 65). I am satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles and the objectives specified in the Apartment Design Guide for the relevant design criteria (as required by cl 30(2) of SEPP 65).

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Certain provisions of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 ('SREP') apply to the site. The site falls within the Foreshores and Waterways Area as designated in the SREP Foreshores and Waterways Area Map. The site is not included in a zone in the SREP Zoning Map.
Division 2 lists matters to be taken into consideration before granting development consent. I note as follows: 1. In regard to cl 21, relevantly, water quality has been addressed in the application through stormwater management plans referred to in conditions of consent (A3). Stormwater will be managed as per drawing C002(1) by JN Engineering. This shows a maritime pollution control pit at the north-western part of the site and also a drainage grate running the width of the site along the southern edge of the pool deck. 2. I have considered cll 22-24 and find them not relevant to this application. 3. In accordance with cll 25 and 26 consideration has been given to the visual impact that the proposal would have upon Sydney Harbour and adjoining foreshore areas and the likely impact upon views of Sydney Harbour. I agree with Council and am satisfied that the proposed development will not have any significant adverse impact upon Sydney Harbour or adjoining foreshore areas.
I note that the Sydney Harbour Foreshores and Waterways Area - Development Control Plan 2005 has been given consideration in the Council assessment report.

State Environmental Planning Policy No 55 - Remediation of Land

In regard to State Environmental Planning Policy No 55 - Remediation of Land ('Contaminated Land SEPP'), I accept the advice of the parties that there are no former uses of the land, or other evidence, to suggest the land is contaminated.

State Environmental Planning Policy (Coastal Management) 2018

The site is located within both a coastal environmental area and coastal use area under State Environmental Planning Policy (Coastal Management) 2018 ('Coastal Management SEPP'). I have considered the matters required to be considered under cll 13(2) and 14(2) of the Coastal Management SEPP and accept the advice of the parties that the proposal is acceptable having regard to those matters.

BASIX certificate

The proposal was accompanied by a BASIX certificate which Council reviewed and deemed satisfactory. A condition of consent will require fulfilment of the commitments listed in the BASIX certificate for the development, as required by cl 97A of the EPA Regulation.

Submissions

I further note the advice of Council that the development application was notified in accordance with requirements. . There were numerous submissions objecting to the proposal. Twenty one submissions were referenced and considered in the Council assessment report. There were further submissions to the amended application. I also had the opportunity to review and hear an extended submission on behalf of the neighbour to the immediate east (83 Yarranabbe Road). The Council is satisfied that the proposal, as amended, addresses the objections raised in these submissions. I have taken into consideration the submissions and advice of the Council in response. I am satisfied that the requirements of s 4.15(1)(d) of the EPA Act have been met.

Contravention of development standards

The applicant is seeking an exception for the contravention of development standards under cl 4.6(2) of the WLEP which provides relevantly as follows: (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...
The permissive power in cl 4.6(2) is subject to the restrictions in subcll 4.6(3)- (5): (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 Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning 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 Planning Secretary before granting concurrence.
Thus, the Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the permissive power under cl 4.6(2) to grant development consent notwithstanding a development standard contravention (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 ('Initial Action 1') at [14]).
The first opinion is in regard to a written request from the Applicant seeking to justify the contravention of the development standard and, specifically, whether it has adequately addressed the two matters required to be demonstrated at cl 4.6(3). The second opinion requires me to make my own finding of satisfaction 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.
In this instance, the applicant has opened the door to application of cl 4.6(2) with respect to each of the development standards by submission of written requests seeking to justify the contravention. These written requests are referred to as: (1) Clause 4.6 Application to Vary a Development Standard: Height of Building - Proposed Alterations & Additions to an Existing Residential Flat Building at No. 77-81 Yarranabbe Road Darling Point ('WR1'), and (2) Clause 4.6 Application to Vary a Development Standard: Floor Space Ratio - Proposed Alterations & Additions to an Existing Residential Flat Building at No. 77-81 Yarranabbe Road Darling Point ('WR2'). Each of these written requests were prepared by GSA Planning and were dated 4 September 2020.
I will consider the height contravention first, then the FSR contravention.

Height of buildings contravention

The height of buildings standard applying to the site is 10.5m. The extent of contravention, according to material provided by the project architects and reproduced in WR1 (Figure 1), and accurate so far as I could discern from the architectural plans, is as follows: (1) the proposal has a maximum building height of 19.61m from the bottom of the lift pits to the top of the lift overruns, an exceedance of 9.11m, (2) moving beyond the lift overrun, the proposal, including the extension of the building to the north beyond the existing envelope, has a maximum building height of 17.23m, a contravention of 6.73m.
Mindful of cl 4.6(3)(a) of WLEP, WR1 initially seeks to demonstrate that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case. It does so mindful of Preston CJ's finding in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The written request uses the first "Wehbe way", seeking to show how, otherwise, the development achieves the objectives of cl 4.3 of WLEP.
I reproduce the list of objectives of cl 4.3 below: (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.
In regard to objective (a), the written request refers to the evolving character of Darling Point, providing certain particulars of historical development approvals in the site vicinity (including via photographic material), the majority of which exceed relevant height controls (WR1, pp6-7). The suggestion is that the approved and developed buildings create the character of Darling Point and that the building is consistent with this character.
The question of the interpretation of the phrase "desired future character of the neighbourhood", as framed in cl 4.3(a) of WLEP, was given some recent consideration by Preston CJ in Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 ('SJD'). I mention here, but it will be seen below, that his Honour's interpretive findings also have wider relevance to the consideration of development standard contraventions in this matter; in regard to references to "desired future character" otherwise (in particular cl 4.4(1)(a)(i) of WLEP) and the R3 zone objectives under WLEP).
At [56] in SJD, Preston CJ finds: "56 In the objective of the height development standard in cl 4.3(1)(a), the referent of "desired future character of the neighbourhood" is used to establish building heights. The building heights that the clause establishes and that are shown on the height of buildings map are consistent with the desired future character of the neighbourhoods in Woollahra. This means that the desired future character of the neighbourhood establishes the building heights for buildings on land in the neighbourhood and not the other way around, that the building heights establish the desired future character."
Other relevant findings in SJD refer to his Honour's conclusions in regard to cl 4.3(1)(a) but also to the similar references in cl 4.4 (with respect to FSR) and the zone objectives: "59 In each of these three objectives, therefore, the desired future character of the neighbourhood or area exists before and informs the establishment of the maximum height and FSR for buildings, and the height and scale of developments, in the neighbourhood or area. This necessarily means that the desired future character of the neighbourhood or area can be evaluated by reference to matters other than only the provisions of WLEP establishing the zoning, the permitted and prohibited development, and the development standards for permitted development in the zone. In this case, this means that the desired future character of the neighbourhood or area can be evaluated by reference to matters other than the building height and FSR established by the height and FSR development standards in cl 4.3 and cl 4.4 and the zoning and Land Use Table for the B2 zone. 60 Thirdly, the application of cl 4.6 of WLEP to the height and FSR development standards supports a broader not narrower construction of the term "desired future character" used in those development standards. Clause 4.6 provides an appropriate degree of flexibility in applying certain development standards to particular development (cl 4.6(1)(a)). However, cl 4.6 does not apply to a development standard that is expressly excluded from the operation of the clause (cl 4.6(2)). Neither the height of buildings development standard in cl 4.3 nor the FSR development standard in cl 4.4 is expressly excluded from the operation of cl 4.6. This contemplates that development that contravenes the height and FSR development standards may be approved under cl 4.6."
I am satisfied, though WR1's drawing out of the relationship between the proposed development and the neighbourhood setting, that the proposed development is consistent with the desired future character of the neighbourhood.
WR1 indicates objective (b) is "not applicable". I accept this description of the objective in the circumstances. Objective (b) is the kind of development standard objective considered in Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 to be "explanatory of the purpose of the … development standard" (at [32]). Objective (b) explains how certain WLEP building height controls are established. In this case it refers to the varying height controls in the WLEP building height maps near zone boundaries.
In regard to objective (c), the written request refers to view from the sun diagrams which show the proposed building would have little effect on solar access enjoyment. I accept the indication that Council controls are achieved. This relatively benign outcome reflects the northern orientation of the site and adjacent properties. I am satisfied, through WR1's explanation, that the proposed development minimises the loss of solar access to existing buildings and open space.
Objective (d) is, among other things, concerned with minimising impact on adjoining or nearby properties from disruption of views, a key point raised in objections in this matter. The most significant potential disruption is for the property to the immediate east (83 Yarranabbe Road).
WR1 works through the four-step view affectation assessment process as explained by Senior Commissioner Roseth in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 ('Tenacity'), and subsequently adopted as a planning principle by the Court. In regard to the first Tenacity step, WR1 indicates the views to be affected are "iconic", and include views of Sydney Harbour Bridge and the Opera House.
In regard to the second Tenacity step, and what part of the property the views are obtained, WR1 works through various relevant parts of the existing residence where views are available, as well as an approved development for the site (DA 172/2018). Before and after photographic depictions are, relevantly, provided (i.e. not in the case of DA 172/2018).
In regard to the third Tenacity step, and the assessment of impact, there is an evaluation from the nominated viewer positions. In general, it is indicated that the views of the "icons" themselves are maintained although at times affected. The significant exception is the view from "Entry Level Dining Nook (Western side)" (p13) where a view of the icons would be lost. It is also indicated that, in regard to DA 172/2018, a view from an angled window to a corridor beside a bedroom and pantry, would be lost. In regard to the fourth Tenacity step, and the reasonableness of the impact, the written request argues that iconic views are reasonably maintained from primary view positions (living rooms and balconies), and that the dining nook and the future corridor window can be considered as both of secondary significance and difficult to protect. The written request notes that the proposed building design includes splaying designed to minimise view disruption.
In considering whether WR1 has adequately addressed the matters required to be demonstrated in regard to minimising impacts on nearby properties from disruption of views, I have also considered certain objecting submissions. It is sufficient here to refer to those prepared on behalf of the owners of 83 Yarranabbe Road, specifically a Town Planning Expert Statement prepared by S Francis of City Plan (dated December 2020, 'City Plan submission') and a View Impact Study prepared by Tzannes (dated 4 December 2020).
Relevant here, it is submitted that the proposal would have significant impact on views from "the main dining room and living room of the existing dwelling at 83 Yarranabbe Road" and "the Level 5 entry hallway of the approved development (DA 172/2018)" (City Plan submission p3). Particular attention is given to the dining room (referred to above). There is attention to a line of sight shown by a "blue dashed line" in Figure 9 in WR1, which could be thought of as "within" the alignment of proposed privacy louvres shown on the eastern side of the proposed development in this figure. This blue line of sight is also said to not line up with the "existing dining room window location" shown by a red arrow. Relevant to Tenacity's fourth step, the City Plan submission notes the disruptions to existing views are all a consequence of non-compliant building elements.
While it is the case that there will be loss of iconic views (demonstrated through analysis of the existing dining room), retention is unrealistic in the circumstances. The objecting submission's reference to other viewing positions within the dining room is not persuasive as, fundamentally, it seems to me that the area is setback within the residence and reliant on side boundary views. The commentary in regard to the dashed blue line does not persuade me on this basic position I take. The view loss from the corridor at Level 5 of the approved development is secondary, transitory and unrealistic to retain. In terms of the extent of impact, considering "the whole of the property", I agree with WR1 (p14) that "abundant" views are maintained from main living areas. While there would be moderate effects from certain viewing positions, this is not unreasonable in these circumstances where there is a reliance on views across boundaries. While I acknowledge the reference in objecting submissions to the fact that the impact is as a consequence of non-compliance, this is offset by the building design which makes reasonable attempts to minimise view loss as indicated in WR1. I am satisfied that the written request adequately demonstrates that the development is consistent with the objective of minimising impacts on nearby properties from disruption of views.
Objective (d) is also concerned with minimising the impacts of new development on adjoining or nearby properties from "loss of privacy, overshadowing or visual intrusion".
I am satisfied that the written request adequately demonstrates that the development is consistent with the objective of minimising such impacts. In regard to privacy, this is because of the development's provision of privacy screens, louvres and frosted or translucent glass in sensitive locations (having regard to the objecting submissions, I am satisfied of WR1's demonstration that the proposal reasonably balances privacy and the intended benefits of the northern (harbour) orientation on terraces). In respect to visual intrusion, this is because of the combined effects of the context (height of 73-75 Yarranabbe Road to the west) and the fact of the splaying of the built form to the eastern neighbour.
Objective (e) is concerned with protecting the amenity of the public domain by providing public views of the harbour and surrounding areas. There is an existing viewline from Yarranabbe Road reservation presenting north, across the site, towards the harbour for a portion of the western side of the site. WR1 submits that the view, and any amenity associated with it, has significant limitations at present ("oblique", "obscured by vegetation", p20, "very limited location", p21). The written request submits that "with reduction of existing vegetation, an alternative side setback harbour view would be available" (p20). The objecting submissions submit that "a significant public view within the Darling Point precinct" would be lost, and that "removal of the existing vegetation will not result in an equivalent public view being provided" (City Plan submission, p9). I disagree with the objecting submission's reference, suggesting this particular view from Yarranabbe Road, relatively narrow and between buildings, is a significant public view. I agree generally with the written request's findings in regard to this view, having regard to my site inspection. I am satisfied that the written request adequately demonstrates that the development is consistent with the objective of protecting the amenity of the public domain with respect to public views.
The written request adequately demonstrates that compliance with the development standard relating to building height is unreasonable or unnecessary in the circumstances of the case through satisfying the requirements of the first Wehbe way.
I note that the written request sought to demonstrate that the second and third Wehbe ways were also satisfied. I have not needed to consider these aspects given my findings in regard to the first Wehbe way.

Sufficient environmental planning grounds

Here, the written request refers to Initial Action v Woollahra Municipal Council [2019] NSWLEC 1097 ('Initial Action 2'), where Commissioner O'Neill found as follows at [42]: "I am satisfied that justifying the aspect of the development that contravenes the development standard as creating a consistent scale with neighbouring development can properly be described as an environmental planning ground within the meaning identified by His Honour in Initial Action [23], because the quality and form of the immediate built environment of the development site creates unique opportunities and constraints to achieving a good design outcome (see s 1.3(g) of the EPA Act)." [Emphasis added in WR1]
Behind this finding is that of Preston CJ in Initial Action 1 at [23] as follows: "As to the second matter required by cl 4.6(3)(b), the grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]. The adjectival phrase "environmental planning" is not defined, but would refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects in s 1.3 of the EPA Act."
The written request cross-references the proposed development against the desired future character for the Darling Point Precinct, using the listed objectives in Woollahra Development Control Plan 2015 (Part 1.2.2). This is a base for a conclusion that: "The proposed alterations and additions will increase the building's presence in the harbour foreshore area as a beautifully designed and elegant response to the location, by a renowned architect. Accordingly, in our opinion, the additional height is consistent with existing building and desired future planning objectives for the locality."
In Initial Action 1, Preston CJ makes reference to the objects in s 1.3 of the EPA Act, as environmental planning grounds. In Initial Action 2, Commissioner O'Neill suggests a proposal's capacity to creatively relate (through design responsiveness to setting) to the quality and form of the immediate built environment can line up with s 1.3(g) of the EPA Act (i.e. "to promote good design …"). There is additional commentary in this written request, directly related to how the (contravening) building height is a factor in this design outcome. The written request adequately demonstrates that this proposal, including directly in regard to its height, creatively relates to its particular setting to the extent that this provides sufficient environmental planning grounds to justify contravening the standard.
Together the above findings mean the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of WLEP. It follows that the test of cl 4.6(4)(a)(i) is satisfied in regard to the height of buildings contravention.

Public interest

I now turn to the test at cl 4.6(4)(a)(ii) of WLEP, and whether the proposed development would be in the public interest because it is consistent with the objectives of the height of buildings standard and the objectives for development within the R3 zone.
I agree with and rely on the written request's demonstration that the proposed development is consistent with the objectives of the applicable height of buildings standard.
The zone objectives are as follows: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.
The proposed development provides residential apartment accommodation within the existing medium density residential environment, consistent with the first zone objective. The proposed development would naturally add to the variety of housing types in this environment consistent with the second objective. The third zone objective is not relevant. I am satisfied that the development is of a height which achieves the desired future character of the neighbourhood based on my analysis of the consistency of the proposal with objective (a) to cl 4.3(1). See [34]-[38]. It will be seen below at [78] that I am satisfied in regard to the FSR of the proposed development, which guides me in regard to scale. I am also satisfied that the development is of a scale which achieves the desired future character of the neighbourhood.
Based on my conclusions above, the proposed development will be in the public interest because it is consistent with the objectives of the building height standard and the objectives for development within the R3 Medium Density Residential zone. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of WLEP are met in regard to the height of buildings contravention.

Conclusion - height of buildings contravention

I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b), but note that I have considered the matters in cl 4.6(5) of WLEP in coming to my conclusions in regard to the contravention and find nothing of significance arises in regard to these matters.
The states of satisfaction required by cl 4.6 of the WLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the height of buildings control.

FSR contravention

Clause 4.4(2) and WLEP's Floor Space Ratio Map establishes a maximum FSR for the site of 0.9:1. The plans show the subject site has a lot size of 1038.6m2 and the proposed gross floor area ('GFA') is 1092m2, suggesting an FSR of 1.05:1. Through a more precise comparison of GFA, the written request concludes there is a contravention of 173.26m2 or 18.5%.
I will note here that objecting submissions contested some of the inclusions in GFA calculations (Drawing A500 Rev EE). Having queried Council representatives directly and considered supporting submissions from Council, I am satisfied that the GFA calculations are correct in regard to the queried inclusions.
WR2 states that compliance with the FSR development standard is unreasonable or unnecessary because the development is consistent with the objectives of the standard notwithstanding the breach (again the first Wehbe way).
The objectives of the FSR standard in cl 4.4 of the LEP, as applying to development in the R3 zone are as follows: (i) to ensure the bulk and scale of new development is compatible with the desired future character of the area, and (ii) to minimise adverse environmental effects on the use or enjoyment of adjoining properties and the public domain, and (iii) to ensure that development allows adequate provision on the land for deep soil planting and areas of private open space,
In regard to Objective (i), WR2 observes that the test in regard to "desired future character" is that of compatibility rather than consistency as was the case for Objective (a) at cl 4.3(1), in regard to the height of buildings clause. A similar approach is adopted to that for the height of buildings contravention. The written request refers to the evolving character of Darling Point and indicates that the "proposal's scale is similar to the existing and nearby development, however in a more refined form" (p4). I am satisfied, through WR2's drawing out of the relationship between the proposed development and the neighbourhood setting, that the written request has adequately demonstrated that the bulk and scale of the proposed development is compatible with the desired future character of the area.
In regard to Objective (ii) and again similarly to WR1, WR2 refers to analysis suggesting the proposal is satisfactory in regard to view disruption, privacy, overshadowing and visual intrusion. Reference is also made to the approved development at 83 Yarranabbe Road suggesting no unreasonable amenity impacts. Visual impact from public domain areas within Yarranabbe Road is also considered, with parallel findings to that outlined in WR1. I am satisfied, through WR2's drawing out of these particulars that the written request has adequately demonstrated that proposed development is consistent with the objective of minimising adverse environmental effects on the use or enjoyment of adjoining properties and the public domain.
In regard to Objective (iii), WR2 indicates through plan references that there is an increase in deep soil area on the subject site due to the reduction of ground floor level external paved areas and that there is also "generous and usable private open space" provided for each dwelling. I am satisfied that the written request has adequately demonstrated that the proposed development allows adequate provision for deep soil planting and areas of private open space.
The written request adequately demonstrates that compliance with the development standard relating to FSR is unreasonable or unnecessary in the circumstances of the case through satisfying the requirements of the first Wehbe way.
I note that the written request sought to demonstrate that the second and third Wehbe ways were also satisfied. I have not considered these aspects given my findings in regard to the first Wehbe way.

Sufficient environmental planning grounds

The principal argument in WR2 aligns directly with WR1, as considered above [53]-[56]. The submission again, in my understanding, is that in accordance with the findings in Initial Action 2, the quality of the proposal's design responsiveness to the quality and form of the immediate built environment, lines up with s 1.3(g) of the EPA Act (i.e. "to promote good design …"). There is additional commentary, directly related to how the additional floor area is a factor in this design outcome. The written request adequately demonstrates that this proposal, including in regard to its GFA and thus FSR, creatively relates to its particular setting to the extent that this provides sufficient environmental planning grounds to justify contravening the standard.
Together the above findings mean the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of WLEP. It follows that the test of cl 4.6(4)(a)(i) is satisfied in regard to the FSR contravention.
I now turn to the test at cl 4.6(4)(a)(ii) of WLEP, that of whether the proposed development will be in the public interest because it is consistent with the objectives of the FSR standard and the objectives for development within the R3 zone. I rely on the written request's demonstration that the proposed development is consistent with the objectives of the FSR standard. I have already found the development consistent with the zone objectives [61].
Based on my conclusions above, the proposed development will be in the public interest because it is consistent with the objectives of the FSR standard and the objectives for development within the R3 Medium Density Residential zone. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of the WLEP are met in regard to FSR contravention.
The states of satisfaction required by cl 4.6 of WLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the FSR control.

Conclusion

With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect.
The Court orders: 1. Leave is granted to the Applicant to rely on the following architectural plans prepared by Koichi Takada Architects: 1. Drawing No. A001 - Executive Summary (Revision EE); 2. Drawing No. A012 - Site Analysis Plan (Revision EE); 3. Drawing No. A013 - Site Plan (Revision EE); 4. Drawing No. A100 - Ground Level Floor Plan (Revision EE); 5. Drawing No. A102 - Level 1 Floor Plan (Revision EE); 6. Drawing No. A104 - Level 2 Floor Plan (Revision EE); 7. Drawing No. A106 - Level 3 Floor Plan (Revision EE); 8. Drawing No. A108 - Level 4 Floor Plan (Revision EE); 9. Drawing No. A110 - Level 5 Floor Plan (Revision EE); 10. Drawing No. A112 - Roof Plan (Revision EE); 11. Drawing No. A200 - North Elevation (Revision EE); 12. Drawing No. A205 - East Elevation (Revision EE); 13. Drawing No. A210 - South Elevation (Yarranabbe Rd) (Revision EE); 14. Drawing No. A215 - West Elevation (Revision EE); 15. Drawing No. A300 - Section A-A (Revision EE); 16. Drawing No. A310 - Section B-B (Revision EE); 17. Drawing No. A315 - Section C-C (Revision EE); 18. Drawing No. A405 - Sun Eye View - Proposed (Revision EE); and 19. Drawing No. A500 - GFA & FSR Diagrams (Revision EE). 1. The Applicant is to pay the Respondent's s8.15(3) costs "thrown away" as agreed or assessed. 2. The Applicant's written request prepared under clause 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP 2014), prepared by GSA Planning dated 4 September 2020 seeking a variation of the development standard for height under clause 4.3 of the WLEP 2014 is well founded and upheld. 3. The Applicant's written request prepared under clause 4.6 of the WLEP 2014, prepared by GSA Planning dated 4 September 2020 seeking a variation of the development standard for floor space ratio under clause 4.4 of the WLEP 2014 is well founded and upheld. 4. The appeal is upheld. 5. Development Consent is granted to DA233/2018 for alteration and additions to the existing residential flat building at 77-81 Yarranabbe Road, Darling Point subject to the conditions in Annexure "A".

Commissioner of the Court Annexure A (628461, pdf) Architectural Plans (12399493, pdf) Landscape Plans (14374073, pdf)

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: 25 January 2021

(2018) 236 LGERA 256

(2007) 156 LGERA 446

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Judgment (18 paragraphs)

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Cases Cited (10)