1 Mitchell Street Pty Ltd v Waverley Council

[2021] NSWLEC 1679

Land and Environment Court

New South Wales

Medium Neutral Citation:

1 Mitchell Street Pty Ltd v Waverley Council [2021] NSWLEC 1679

Hearing dates:

19-20 July 2021

Date of orders:

8 November 2021

Decision date:

08 November 2021

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) The exhibits, other than 1 and C, are returned.

Catchwords:

DEVELOPMENT APPLICATION – mixed-use residential apartment development – environmental impacts – cl 4.6 written requests – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, ss 34, 39

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 55—Remediation of Land

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

Waverley Local Environmental Plan 2012, cll 4.3, 4.4, 4.6

Cases Cited:

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Apartment Design Guide

Land and Environment Court, COVID-19 Pandemic Arrangements Policy (April 2021)

Waverley Development Control Plan 2012, Amendment 6

Category:

Principal judgment

Parties:

1 Mitchell Street Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
N Eastman (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2020/262321

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA-47/2020 (the application) by Waverley Council (the Respondent). The application sought consent for alterations and additions to the existing mixed-use building to comprise five residential apartments and ground floor shops, including an additional storey at 1 Mitchell Street, North Bondi (the site).

2. Prior to the hearing, on 28 May 2021, the Court granted leave to the Applicant to amend the Development Application and rely upon amended plans.

3. Subsequently, and prior to the hearing, on 16 July 2021 the Applicant lodged a Notice of Motion seeking to further amend the Development Application. This Notice of Motion was heard by me at the commencement of the hearing and was not opposed by the Respondent.

4. Leave was granted to the Applicant’s Notice of Motion and the further amended application was formally tendered as Exhibit C at the commencement of the second day of the proceedings, and forms the subject of this appeal.

5. The key features of the final amended proposal continue to be alterations and additions to the existing mixed-use building comprising five residential apartments and ground floor shops, including an additional storey. The various elements of the final amended proposal include:

1. Construction of an additional storey to provide bedrooms connecting to three of the four units below.

2. Extension of the ground floor unit towards the rear of the site to create a more generous one-bedroom unit layout with study.

3. Extension of the first floor level towards the south-western side of the site to create an additional unit.

4. Internal reconfiguration to provide five units, three of which are double level units.

5. Provision of a new lift from the ground to the first floor level.

6. New waste, clothes drying and service area within the rear yard.

7. Removal of the existing concrete slab at the front of the site to introduce more landscaping within the front setback on Mitchell Street.

6. For these reasons, in granting leave to the Applicant, I am satisfied this final amended proposal remains substantially the same as the original Development Application pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000.

7. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 6 April 2021, the matter was conducted by Microsoft Teams.

The site and its context

8. The site is located at 1 Mitchell Street, North Bondi and is legally described as Lot 1 in DP 726416.

9. The site is located on the western side of Mitchell Street at the intersection with Murriverie Road. The site is generally rectangular with a curved boundary to the corner with Murriverie Road. The site has a western boundary of 13.27m at the rear and a length of 28.5m along the shared southern boundary with 3 Mitchell Street, to the south. The site has an area of 379.4sqm.

10. The site is occupied by a two-storey Inter-War/Art Deco mixed use building, which is formally heritage listed. At the ground level, fronting Murriverie Road and the intersection with Mitchell Street, the building contains three retail shops. The building currently contains four residential units, one being located at the ground floor level fronting Mitchell Street and the remaining three units being on the first floor. There is no parking provided on the site.

11. The wider vicinity of the site is characterised by gentle topography and a regular, orthogonal street and subdivision pattern. The locality figures a reasonably consistent pattern of detached and semi-detached residential dwellings.

12. The immediate vicinity along the southern side of Murriverie Road can be characterised as a traditional neighbourhood centre and includes the subject property.

13. On the opposite corner, at 2 Mitchell Street, is a similar mixed-use building with cafe at ground level and residential units on the ground and first floor levels.

14. The site is adjoined by a semi-detached dwelling to the south (3 Mitchell Street) and a single-storey, heritage listed, electricity substation to the west on Murriverie Road.

The planning controls

15. The site is zoned B1 Neighbourhood Centre pursuant to the Waverley Local Environmental Plan 2012 (WLEP). The proposed mixed-use development with residential apartments is permissible with consent.

16. The further relevant elements of the planning framework are as follows:

1. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55).

2. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65).

3. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX).

4. WLEP.

5. Waverley Development Control Plan 2012, Amendment 6 (WDCP).

6. Apartment Design Guide (ADG).

History of the Development Application

17. The Respondent’s Amended Statement of Facts and Contentions, dated 17 June 2021 and forming Exhibit 1 in these proceedings, sets out the history of the application. A concise summary follows.

18. The application was lodged with the Respondent on 19 February 2020.

19. The application was notified from 25 February 2020 for 21 days.

20. The Respondent received four submissions in response to public notification, citing a range of planning issues, including, most relevantly, concerns for building height and floor space, bulk and scale, setbacks, private open space, overshadowing and lack of parking provision.

21. On 29 July 2020, the Waverley Local Planning Panel refused the application. The reasons for refusal include a failure to satisfy SEPP 65, impacts upon the heritage significance of a listed building, exceedance of height of building and floor space ratio development standards set out in the WLEP amongst other reasons.

22. On 9 September 2020, the Applicant filed a Class 1 appeal against the refusal of the application.

23. On 9 February 2021, a s 34 conciliation conference was conducted but was unable to resolve the matters in contention. The conference was terminated.

24. On 24 May 2021, the Court granted leave to the Applicant to amend the Development Application and rely upon amended plans.

25. As noted earlier in this judgment, at the commencement of the hearing on 19 July 2021, I granted leave to the Applicant to further amend the application and rely upon amended plans, which were tendered on the second day of the proceedings - and which form Exhibit C.

The issues

26. The contentions set out by the Respondent can be found in the Amended Statement of Facts and Contentions forming Exhibit 1 in these proceedings.

27. These contentions are summarised as follows:

1. Height of building.

2. Bulk and streetscape.

3. Design quality.

4. Heritage.

5. Residential amenity.

6. Overdevelopment and site suitability.

7. Waste management.

8. The public interest.

9. Shadow diagrams (insufficient information).

10. Heritage (insufficient information).

The evidence

28. The Court was assisted by experts in planning and heritage, who conferred to prepare two separate joint expert reports.

29. The planning experts are Mr Stuart McDonald (planner) for the Respondent, and Mr Lee Kosnetter (planner) for the Applicant. Their planning joint expert report forms Exhibit 3 in these proceedings.

30. The heritage experts are Mr Paul Davies (heritage architect) for the Respondent, and Mr James Phillips (heritage consultant) for the Applicant. Their heritage joint expert report forms Exhibit 4 in these proceedings.

31. In their oral evidence, Mr Davies and Mr Phillips - each addressing the final amended proposal - gave their general agreement that the most recent design amendments satisfactorily resolve all heritage contentions, particularly those set out at par 4.3 of the joint report.

32. Mr Davies set out his view that the retention of the primary roof form and its geometry, and the retention of significant entry stair, handrail and terrazzo flooring were now demonstrated in the final amended proposal. Mr Davies also indicated he was satisfied any remaining heritage issues are capable of being resolved by condition of consent.

33. Mr Phillips then offered his view that the proposed heritage deed, referred to in the Respondent’s draft conditions of consent, is unnecessary given the requirement for each heritage condition to be satisfied prior to issue of a construction certificate. This was accepted by the Respondent.

34. Turning next to the planning experts and their evidence. At the outset, I note that evidence provided by Mr McDonald and Mr Kosnetter was spread over both days of the hearing, and at the commencement of the second day, coinciding with the formal tender of the final amended proposal, the planning experts provided further evidence to respond to the final design modifications.

35. For this reason, due to incremental improvements evident in the final amended proposal, a number of the Respondents’ contentions were resolved mid-way through the hearing. This is noted further in this judgment below.

36. In his opening oral evidence, Mr McDonald for the Respondent, set out his concerns for the adequacy of the Applicant’s two cl 4.6 written requests seeking to justify the proposed variation to development standards for height of building (cl 4.3 of the WLEP) and floor space ratio (cl 4.4 of the WLEP).

37. Mr McDonald noted that the Applicant’s two cl 4.6 written requests each rely upon the precedent established by Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe), referred to as Wehbe way number 1, seeking to demonstrate that the objectives of the development standard are achieved notwithstanding the contravention.

38. Referring to the objectives of the height of building development standard, Mr McDonald made mention of subcll 4.3(1)(a) and (d). These are the relevant objectives in this matter, and of particular note is the phrase “preserve the environmental amenity of neighbouring properties”.

39. In Mr McDonald’s view, this phrase may be interpreted so as to accommodate some change to the amenity enjoyed by a neighbouring property, but not result in any net loss of amenity.

40. Mr McDonald noted that although the portion of the proposal which (at that time) exceeded the building height control is relatively minor, the rooftop additions nonetheless contribute to additional overshadowing, and that this overshadowing amounts to a net loss of amenity for the neighbouring property.

41. At pars 16-21 of the joint report, Mr McDonald elaborates on this point, and in particular, at par 18 he states:

“In terms of building height, in principle I am of the opinion that there may be scope for a very modest amount of additional residential floor space occupying or adding to the roof space, including a small 3rd storey section, providing that the heritage impacts are deemed acceptable, as determined by the Respondent’s heritage expert and the internal design and resultant amenity to units is acceptable, and also, importantly, providing that it can be demonstrated that there are no additional overshadowing, attributable to an exceedance of a development standard (height or FSR) or other amenity impacts on neighbouring properties. The amended application filed with the Court does not achieve this. There is a demonstrable additional overshadowing impact on the private open space at 3 Mitchell Street adjoining to the site.”

42. In his oral evidence Mr Kosnetter set out his disagreement on this point, noting that the overshadowing impact upon the neighbouring property is minor, and that it retains an acceptable level of solar access exceeding 3 hours.

43. Mr Kosnetter also stated that the overshadowing of the neighbouring property is not attributable to that portion of the proposed additions which exceed the height of building development standard, and that solar access forms only one component of overall environmental amenity.

44. Mr Kosnetter elaborates on these points within the joint report at pars 11-15 and in particular, at par 14 he states:

“In terms of overshadowing, the further documentation provided by the architects demonstrates that there is no additional overshadowing attributable to the height variation, preserving the amenity of the neighbouring properties, satisfying objective (a) of the standard.”

45. The planning experts next gave oral evidence regarding the adequacy of the Applicant’s second cl 4.6 written request, in this instance seeking to justify the proposed variance of the floor space ratio development standard as set out at cl 4.4 of the WLEP.

46. Following a similar line of argument as the proposed height of building exceedance, Mr McDonald noted that the relevant objectives of the floor space ratio development standard are set out at subcll 4.4(1)(b), (c) and (d).

47. The relevant objectives are summarised as seeking to ensure compatibility with the desired future character in terms of bulk and scale, to provide a correlation between building height and density controls, and to limit the scale of development to preserve environmental amenity of neighbouring properties.

48. In Mr McDonald’s view, these objectives are not met by the amended proposal (at that time), in part because of the additional overshadowing created by the proposal upon the immediate neighbouring property, but also due to the congestion evident in the configuration of the rear service courtyard and its impacts upon both the proposed development and the immediate neighbouring property.

49. Mr McDonald elaborates on his reasons for not supporting the proposed exceedance of the floor space ratio at pars 38-58 of the joint report.

50. In reply, Mr Kosnetter set out his view that despite the additional overshadowing impacts attributable to the proposed additions, there are net benefits to the environmental amenity which result from the proposed development. These net benefits can be associated with improved waste management at the subject property, improved visual and acoustic privacy between neighbouring properties and improved internal amenity and private open space at the subject property.

51. Mr Kosnetter elaborates on these points in support of the floor space exceedance at pars 27-37 of the joint report.

52. Next, the planning experts gave oral evidence regarding the Respondent’s contentions regarding design quality and residential amenity.

53. Mr McDonald identified a series of shortcomings evident in the amended proposal, which in Mr McDonald’s view unacceptably impair the amenity available to residents and neighbouring properties. The issues of concern include the configuration of bins, air conditioning condensers and clothes drying facilities within the service courtyard, and their proximity to both the proposed dwellings and to neighbouring properties.

54. Additionally, Mr McDonald raised his concerns for the general arrangement of the proposal, the failure to achieve effective cross ventilation, the shortage of private open space, lack of any communal open space, constrained outlook and amenity, and the potential for cross viewing between neighbouring properties.

55. At this point in the hearing - the commencement of the second day - the final amended proposal was formally tendered as Exhibit C. Consequently, the planning experts gave further oral evidence to agree that the final amended Development Application reduces the extent of the upper level additions such that the proposed additions no longer exceed the height of building development standard.

56. The planning experts therefore agreed that the resultant overshadowing impacts created by the proposed additions are now more narrowly concentrated, affecting a smaller portion of the rear private open space of the immediate neighbour at 3 Michell Street, and occurring between approximately 10:30am and 11:30am during the winter solstice.

57. Mr McDonald further confirmed that a number of features of the final amended proposal served to satisfactorily mitigate his substantive concerns - to the extent that Mr McDonald was now satisfied the Applicant’s cl 4.6 written request for the proposed exceedance of the height of building standard is supportable. This is attributable to the fact that the only remaining exceedance of the building height development standard is related to the existing roofline of the heritage building.

58. Mr McDonald also agreed that issues of privacy and cross viewing had been adequately resolved by the final amended proposal.

59. However, Mr McDonald restated his earlier evidence in other regards. In summary, this includes his fundamental view that the proposed exceedance of the floor space ratio development standard (cl 4.4 of the WLEP) cannot be supported, due to the net reduction in amenity created by the proposal upon the immediate neighbour. Additionally, Mr McDonald remained concerned for the resultant residential amenity available within the final amended proposal and for its failure to demonstrate an acceptable level of design quality.

Findings

60. Having considered those areas of agreement between the parties, the expert evidence and respective submissions of the Applicant and Respondent in this matter, I have determined that the final amended Development Application remains deficient in a number of critical areas of merit and also fails at a jurisdictional threshold, and for these reasons it is not appropriate to grant consent. My reasons for therefore dismissing the appeal are set out in the following paragraphs.

61. In reaching this determination, I group and summarise the various remaining live contentions in the matter:

1. Whether the final amended proposal satisfies merit considerations relating to residential amenity and design quality when assessed against various objectives and controls set out in the ADG and WDCP.

2. The adequacy or otherwise of the Applicant’s cl 4.6 written request, which seeks to justify a proposed variation to the floor space ratio development standard set out at cl 4.4 of the WLEP, which, it is contended, contributes to the failure of the proposal to preserve environmental amenity of the neighbouring property.

62. Although the adequacy or otherwise of the cl 4.6 written request represents a jurisdictional threshold for any consent in this matter, I firstly address the merit considerations implicit within the final amended proposal, noting that these merit considerations also contribute to the failure of the Applicant’s cl 4.6 written request.

62. I accept the submissions of the Respondent, that there appears to have been a series of genuine and meaningful attempts made by the Applicant to reduce, minimise and resolve the contentions in this matter.

63. Through a series of successive amended proposals, the Applicant has satisfactorily resolved a number of contentions including heritage, the exceedance of the height of building development standard, waste management, and has mitigated against a number of other matters, including privacy and cross viewing.

64. However, in the context of a contested hearing, it is not a matter of how far the proposal has come, but that it still falls short of providing an acceptable level of amenity to future occupants and immediately affected neighbours.

65. I accept the oral evidence of Mr McDonald that the issue of overshadowing to the private open space of the immediate neighbour at 3 Mitchell Street remains a relevant consideration and, to some extent, diminishes the available amenity enjoyed by the neighbouring property.

66. The Applicant has provided some information to demonstrate the extent of this overshadowing impact - which is limited to perhaps 4 or 5 sqm of a rear barbecue terrace between the hours of approximately 10:30am and 12:30pm during the winter solstice - the shadow diagrams lack some exactitude. In any case, it is agreed to be relatively minor.

67. I accept Mr McDonald’s concern for the congestion evident in the rear service courtyard, and together the proposed co-location of waste management, elevated air-conditioning condenser units and clothes drying facilities serves to concentrate amenity impacts at a sensitive site boundary adjacent to the neighbouring property at 3 Mitchell Street.

68. I also accept Mr McDonald’s evidence regarding the shortfall in private open space provided by the proposal and his concern that three of the five units lack any private outdoor space. A fourth unit is provided with a compact juliet balcony of 2,300 x 600mm in size, whilst the final unit benefits from the existing balcony currently evident within the heritage building.

69. In this instance, I do not accept the Applicant’s submissions that particular provisions of the ADG might entirely “excuse” the absence of private open space in the context of a proposal seeking to adapt a heritage building. The relevant section of the ADG is set out at section 4R (pp 120-121), where the apposite text states:

“A balance must be achieved between the benefits of retaining existing buildings versus the quality of residential amenity that can be achieved.”

“Objective 4R-2

…

Design guidance

…

Some proposals that adapt existing buildings may not be able to achieve all of the design criteria in this Apartment Design Guide. Where developments are unable to achieve the design criteria, alternatives could be considered in the following areas:

…

alternative approaches to private open space and balconies”

71. I am not satisfied the final amended proposal achieves an appropriate balance in this instance.

72. Compounding the stated shortfall in the provision of private open space, the proposal provides no communal open space. Although Mr Kosnetter seeks to justify this (at par 33 of the joint report) noting the site’s proximity to a local park, I accept Mr McDonald’s view that the absence of any communal open space is a significant deficiency of the final amended proposal.

73. Turning to the corresponding section of the ADG, set out at section 3D (pp 54-59), the relevant text states:

“Objective 3D-1

An adequate area of communal open space is provided to enhance residential amenity and to provide opportunities for landscaping

Design criteria

Communal open space has a minimum area equal to 25% of the site

Developments achieve a minimum of 50% direct sunlight to the principal usable part of the communal open space for a minimum of 2 hours between 9 am and 3 pm on 21 June (mid winter)

Design guidance

…

Where developments are unable to achieve the design criteria, such as on small lots, sites within business zones, or in a dense urban area, they should:

provide communal spaces elsewhere such as a landscaped roof top terrace or a common room

provide larger balconies or increased private open space for apartments

demonstrate good proximity to public open space and facilities and/or provide contributions to public open space”

74. On balance, I am not satisfied the final amended proposal meets this objective or the associated design criteria, nor adequately justifies the absence of communal open space.

75. Finally, I accept Mr McDonald’s evidence that the master bedrooms associated with two of the five units rely solely on skylights for access to natural light and air and consequently suffer from reduced outlook and amenity.

76. While it is possible that any one of these various shortcomings might be acceptable in some other hypothetical alternative proposal, I find that in concert, these deficiencies cumulatively diminish the resultant amenity available to future occupants and cumulatively result in the diminution of environmental amenity more generally.

77. Turning next to the Applicant’s cl 4.6 written request, seeking to vary the floor space ratio development standard, I determine this jurisdictional threshold has not been met and the written request is therefore dismissed.

78. Read together, subcll 4.6(3) and (4) of the WLEP require the consent authority to first consider and then be satisfied the Applicant’s written request demonstrates that compliance with the floor space ratio control is unreasonable in the circumstances of the case.

79. In making this determination, and as noted earlier in this judgment, the Applicant’s cl 4.6 written request seeks to rely on Wehbe way number 1, which requires the Applicant to demonstrate the objectives of the floor space ratio development standard will be achieved despite the non-compliance with the numerical standard.

80. Of particular relevance in this regard, the critical objective of cl 4.4 - Floor space ratio - of the WLEP includes:

(d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and the locality.

81. I find that on balance, the final amended proposal does not preserve the environmental amenity of neighbouring properties. The adjacent property at 3 Mitchell Street suffers from diminished solar access to its private open space and impacts associated with the service court sited close to the side boundary.

82. Both sets of impacts are attributable to the additional floor space sought in the final amended proposal, and although relatively minor in nature, can not be argued to “preserve” environmental amenity.

83. Consequently, the Applicant’s cl 4.6 written request, seeking to vary the floor space ratio development standard, can not be sustained and is therefore dismissed.

84. For the reasons set out in this judgment, I now move to dismiss the appeal.

85. Accordingly, the Court notes that:

1. The Court, under s 39(2) of the Land and Environment Court Act 1979, and exercising the function of Waverley Council as the relevant consent authority pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, agrees to the Applicant amending Development Application DA-47/2020 reflecting the architectural plans which form Exhibit C in these proceedings.

Orders

86. The Court orders that:

1. The appeal is dismissed.

2. The exhibits, other than 1 and C, are returned.

………………………

M Pullinger

Acting Commissioner of the Court

**********

Decision last updated: 08 November 2021