Angel Hersch Francis Street Pty Ltd v Waverley Council

[2022] NSWLEC 1609

Land and Environment Court

New South Wales

Medium Neutral Citation:

Angel Hersch Francis Street Pty Ltd v Waverley Council [2022] NSWLEC 1609

Hearing dates:

26 and 27 September 2022

Date of orders:

03 November 2022

Decision date:

03 November 2022

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) Development application 519/2021 for alterations and additions to an existing residential flat building at 88 Francis Street Bondi Beach is determined by refusal of consent.

(3) The exhibits are returned except Exhibits 1, A, B and C which are retained.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to an existing residential flat building ––floor space ratio contravention – height of building contravention

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.67, 8.7, Pt 4 Div 4.11
Environmental Planning and Assessment Regulation 2000, Pt 5

Land and Environment Court Act 1979

Waverley Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, Sch 5

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140

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

Category:

Principal judgment

Parties:

Angel Hersch Francis Street Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
I Hemmings SC (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Hones Lawyers Pty Ltd (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2022/15051

Publication restriction:

No

Judgment

1. This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Waverley Council (Council) of development application No 519/2021 for alterations and additions to a residential flat building at 88 Francis Street Bondi Beach, legally described as SP 89241 (site).

Site and locality

2. Survey material shows the site as quite rectangular in shape with an area of 260.8m² (Ex A Tab 6). The frontage to Francis Street is 10.495m and side boundaries are 24.905 (north-west) and 24.975 (south-east). The site falls some 2.92m from the rear boundary to the front boundary.

3. The site is occupied by what is described as “a late Inter-War residential flat building incorporating aspects of Inter-War Art Deco and Inter-War Functionalist style” (Council’s Amended Statement of Facts and Contentions Ex 1 par 6). The building comprises two residential storeys above two single garages that face Francis Street. The building accommodates four units and a small roof top enclosure containing a laundry. The building has a flat non-trafficable roof enclosed by a raised facebrick parapet.

4. Development fronting Francis Street, in the site vicinity, is mostly low density residential development including dwelling houses and semi-detached dwellings, although there are examples of other residential flat buildings fronting Francis Street. Development to the rear of the site fronts Edward Street which is considerably elevated above the site. Edward Street development comprises a mix of medium and low density residential development, including residential flat buildings and dwelling houses.

Proposal

5. The DA seeks consent for alterations and additions to the existing residential flat building including construction of a new works on the rooftop, internal and external alterations and excavation to extend the basement to accommodate additional car parking (including a car stacker).

6. It is fair to say that the revised floor plans and additions would significantly improve the quality of the residential spaces available in this residential flat building. There would be new balconies for Units 1 and 3 at the front of the building. A significant new space would be provided on the roof for the use of Unit 4. A new lift would link into the expanded garage and connect all levels of the building.

Planning provisions

7. The site is located within the R2 Low Density Residential zone under Waverley Local Environmental Plan 2012 (WLEP), as is the area generally surrounding it, with the exception of a small park on lower land opposite the site (Forest Knoll Reserve). Land further south (south again of Edward Street) is zoned R3 Medium Density Residential.

8. The front property boundary of the site adjoins the Francis Street Landscape Conservation Area (C43) which is mapped as a heritage item and listed at Sch 5 of WLEP.

Statutory considerations

9. Residential flat buildings are a prohibited use in the R2 zone under WLEP. The DA relies on existing use rights.

10. Clauses 4.3 and 4.4 of WLEP stipulate applicable height of building and floor space ratio (FSR) standards, respectively, which the proposal would contravene. The Applicant is seeking the Court to take up the permissive powers, under cl 4.6 of WLEP, which can allow for consent to be granted notwithstanding such contraventions, provided certain pre-requisites are met.

Issues

11. Council raised contentions relating to: (1) context and neighbourhood character, (2) density/overdevelopment, (3) height, (4) excavation and earthworks, (5) outlook/views, (6) design excellence and (7) public interest.

12. It will be seen that the jurisdictional questions relating to the height of building and FSR development standard contraventions are at the centre of my findings in this matter. Briefly here, it seems to me that as a consequence of the proposed additional floor space and building massing on the roof (relevant to both the height of building and FSR development standard contraventions), jurisdictional pre-requisites to the exercise of the permissive powers of cl 4.6 of WLEP have not been met.

Development standard contraventions

13. The permissive power in cl 4.6(2) of WLEP 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.

14. 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 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) of WLEP. 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.

15. The Applicant has opened the door to the Court’s consideration of the use of the permissive powers at cl 4.6(2) of WLEP by providing written requests seeking to justify each of the contraventions. Each were prepared by aSquare planning and are dated 9 September 2022. Each were annexed to the joint report prepared by town planning experts (Ex 3). Henceforth I will refer to the written request relating to the FSR contravention as WR FSR, and the written request relating to the height of building contravention as WR HB.

Considering the floor space ratio contravention

Particulars of the contravention

16. The applicable FSR development standard under cl 4.4 of WLEP is 0.5:1. According to WR FSR, the existing building has a gross floor area (GFA) of 305.8m² and a FSR of 1.17:1. The proposal would add 41.6m² bringing the FSR to 1.33:1. The existing FSR position is indicated as 135% of the WLEP standard and the changes would bring the FSR to 166% of the standard.

Whether written request adequately demonstrates compliance is unreasonable or unnecessary

17. WR FSR seeks to demonstrate that compliance with the FSR development standard is unreasonable or unnecessary because the objectives of the standard are achieved, notwithstanding the contravention. This approach aligns with the first “way” as determined in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (Wehbe). It is helpful for me to call to mind the rationale behind the first Wehbe way, as explained by Preston CJ, in Wehbe (at [43]):

“The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).”

18. The nominated objectives relating to the FSR standard in cl 4.4 of WLEP are as follows:

(a) to ensure sufficient floor space can be accommodated within the Bondi Junction Centre to meet foreseeable future needs,

(b) to provide an appropriate correlation between maximum building heights and density controls,

(c) to ensure that buildings are compatible with the bulk and scale of the desired future character of the locality,

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

19. When I consider each of the objectives relating to the FSR standard, I would note the following. Objective (a) is not locationally relevant. I would see Objective (b) as explanatory of the relationship between height of buildings and density standards as adopted within WLEP. The “end” sought by Objective (c) is related to whether the building could be seen to be compatible or in harmony with the bulk and scale aspects of the desired future character of the locality. The end sought by Objective (d) is different to that. In my interpretation, Objective (d) is specific in nominating the objective (or “end”) of establishing limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and the locality (my emphasis).

20. I find that WSFSR has not adequately demonstrated that the proposal achieves this particular objective.

21. The central concern is in regard to the visual presence of the new building massing on the existing rooftop, described as a new penthouse addition to existing Unit 4 (WR FSR p1). Evidence from Ms Robinson, not generally disputed, was that the existing rooftop laundry and stairwell is about 13m² in area (Ex 3 par 19). The proposed rooftop structure would be considerably wider and longer than the existing rooftop structure (Ex 3 par 19 indicates an area of some 57m²).

22. When directly considering Objective (d), WR FSR references certain material, and includes some supportive diagrams, and argues as follows (WR FSR p 11-12):

“The proposal will not result in the loss of views from surrounding development as demonstrated in the submitted view analysis (see extracts below). This analysis indicates that the proposed addition will not affect significant views from the properties to the rear, being 47, 49 and 49a Edward Street. The view from these properties is a district outlook with vegetation and the proposal will preserve the verdant outlook.

The proposal will not result in unreasonable overshadowing of adjoining properties as demonstrated in the shadow plans and perspectives with no additional overshadowing over the private open space or north facing windows of adjoining properties. The existing building overshadows the west facing windows in mid-winter at ground level and any future first floor windows.

The proposal will provide a development, which has been designed to ensure that the visual and acoustic privacy of adjoining properties is maintained with no overlooking of private open space. With respect to the proposed terrace area at roof top level, adequate separation and a 1.5m privacy screen will protect the privacy of adjoining properties.

The proposal will preserve the environmental amenity of locality by providing a discreet part floor addition, which, whilst visible in the public domain, will be predominately viewed within the tree canopy, which is located in the landscape conservation area.

For these reasons, the proposal will preserve environmental amenity of neighbouring properties and the locality.”

23. There is other commentary in WS FSR, which I have also considered, which sought to argue in support of the position that strict compliance with the development standards was unreasonable and unnecessary.

24. I note the arguments in WR FSR that visual and acoustic privacy is “maintained” (a term which for me has good alignment with “preserved”) through screening and distance separation. I generally accept this argument as put. I also generally accept that WR FSR adequately demonstrates the preservation of solar access (WR FSR p 5-6). Here I am not persuaded by evidence from Council’s planning expert (Ms Robinson) that the particular additional shadowing of the walls and roof of 86 Francis Street should be a factor in the consideration of the environmental amenity of neighbouring properties (Ex 3 par 47b).

25. The WR FSR makes reference to a view analysis prepared on behalf of the Applicant (Ex C Tab 7) and argues the proposed addition would “not affect significant views from the properties to the rear” (“47, 49 and 49a Edward Street” (WR FSR p 10)). It is put as follows:

“The view from these properties is a district outlook with vegetation and the proposal will preserve the verdant outlook.”

26. While it could not be argued that the views available from the properties to the south of the site are of the highest quality scenery, the outlooks are pleasant and can be reasonably thought of as a significant amenity factor in at least some of the residences. There was an opportunity to view from one of the units within 49 Edward Street, including from the north-facing balcony. There were also photos provided in written objecting submissions from 49 Edward Street (Ex 2 Tab 4). Objecting submissions and photos were also provided from two levels of 49a Edward Street (Ex 2 Tab 4E).

27. WR FSR was not convincing that existing pleasant outlooks from residences within at least 49 Edward Street, and to a lesser extent 49a Edward Street, would not be diminished, rather than preserved, as a consequence of the new building massing.

28. When I consider the outlook from the upper two levels of 49 Edward Street in particular, the proposed rooftop accommodation would appear as a new building massing (“a boxy unarticulated form” says Ms Robinson (Ex 3 par 47a), an opinion I accept), quite front and centre to the existing “verdant” outlook to the north. There would also likely be some looking over a 1.6m high privacy screen to the top of a clothesline from the top floor of 49 Edward Street. But it is the new building massing which is of most concern and its presence relatively close to northern balconies on 49 Edward Street. There is something pleasant about looking out from the closer quarters of the balcony, or the areas nearby inside these units, towards the north and the trees and district views, which would be diminished by having the proposed new building so apparent in front.

29. The concern here does not relate to the planning principle found in Tenacity Consulting v Warringah [2004] NSWLEC 140. Nor does the particular test before me here go to the overall reasonableness of what is proposed. WR FSR needs to demonstrate to my satisfaction that the proposal would achieve the objective of limiting the overall scale of development to preserve the environmental amenity of these neighbouring properties. I am not satisfied that WR FSR has done so. Notwithstanding the commentary in WR FSR, the proposal would bring about significantly diminished outlooks from the residences on the upper two levels at 49 Edward Street. There would also be some effects on the outlooks from 49a Edward Street.

30. It is appropriate to consider whether the fact of the diminished outlook from the units at these two upper levels of 49 Edward Street is sufficient to find that WR FSR has not demonstrated what is required to be demonstrated under cl 4.6(3)(a). In my opinion it is sufficient. There are two points to make on that front. First, is to indicate that the calling up of the first Wehbe way brings on the requirement for the written request to demonstrate that each of the objectives of the floor space standard have been achieved. In this case that includes Objective (d) of the FSR standard concerned with “(establishing) limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties”. For example, even if I were to be convinced that the proposal was “compatible with the bulk and scale of the desired future character of the locality” (Objective (c)), this does not detract from the need to be satisfied in regard to Objective (d).

31. The second point is to make clear that the diminution of the pleasant northern outlooks from two upper levels of 49 Edward Street is not otherwise offset in some fashion by the proposal. When evaluating whether there have been limitations on the overall scale of development to preserve environmental amenity, it might be reasonable to think of this environmental amenity, under attention, as a whole. That is to say it might not be necessary that each individual factor with a relationship to environmental amenity be preserved. However, even when I take this point into account, I am still of the opinion that WR FSR has not demonstrated that the proposal achieves Objective (d) of the FSR standard. In turn in regard to the FSR standard contravention, under cl 4.6(4)(a)(i) of WLEP, I am not satisfied that WR FSR has demonstrated the matter required to be demonstrated under cl 4.6(3)(a). This finding means that, in light of the FSR standard contravention, consent must not be granted in this instance.

32. While this is grounds of itself for a determination of the refusal to grant consent, for a sense of completeness, I will briefly consider WR FSR’s consideration of the test at cl 4.6(3)(b)(whether there are sufficient environmental planning grounds) and then WR HB.

Whether sufficient environmental planning grounds

33. WR FSR nominates a set of planning grounds seen as sufficient to justify contravening the standard. Arguments were put in relation to the lack, or low level, of impacts associated with the proposal and the retention of the character and “integrity of the building”. It is also argued that the zone objective relating to “(providing) for the housing needs of the community within a low density residential environment” (my emphasis) should not be taken against the proposal mindful of its status as a residential flat building and the provisions of s 4.67 of the EPA Act.

33. I did not find the planning grounds proffered in WR FSR as sufficient to justify contravening the standard. I do not agree with the argument put that the proposal would not impact on neighbouring development. As indicated above, it is clear that the additional building massing at the roof level would have a negative environmental amenity impact on neighbouring properties. The fact of no further impact, whether true or not, would not be sufficient grounds in this instance. I am also not able to be persuaded that improving the available amenity to Unit 4 in the existing residential flat building (something I accept as a planning ground) along with the otherwise proposed alterations, somehow link to a persuasive point of consistency with the objects of the EPA Act (WR FSR p 12), when the improvements to Unit 4 occur at a cost to the dwellings to the south.

Considering the height of buildings contravention

Particulars of the contravention

35. The applicable height of building standard under cl 4.3 of WLEP is 8.5m. According to WR HB, with the changes at the roof level the maximum building height would be 10.4m, a contravention of 1.9m at the front elevation. The contravention at the rear elevation would be only some 400mm, given site gradients. Of course, the existing rooftop laundry and stairwell already contravenes the height standard, but the proposal would increase both the contravening height massing, and the absolute height.

Whether written request adequately demonstrates compliance is unreasonable or unnecessary

36. WR HB seeks to demonstrate that compliance with the height of buildings development standard is unreasonable or unnecessary again by way of the first Wehbe way. That is, that the objectives of the standard are achieved notwithstanding the contravention.

37. The objectives of cl 4.3 of WLEP are as follows:

(a)  to ensure building heights preserve the environmental amenity of neighbouring properties and public spaces and, if appropriate, the sharing of views,

(b) to accommodate taller buildings on land in Zone B3 Commercial Core in the Bondi Junction Centre and establish a transition in scale between adjoining zones to protect local amenity,

(c)  to maintain satisfactory solar access to existing buildings and public areas,

(d)  to establish building heights that are consistent with the desired future character of the locality

38. I can deal with this matter quite briefly. Firstly, I note that my point of concern is Objective (a), which again is concerned with the topic of “preserving” the environmental amenity of neighbouring properties. Secondly, I note that, on my reading, WR HB uses essentially the same arguments as used in regard to the contravention of the FSR standard (ie essentially the same arguments as in WR FSR), although paying a little more attention to the proposed side terrace area at roof top level.

39. My reasoning and conclusions are also essentially the same as that in regard to the WR FSR. While the height contravention is only some 400mm at the nearest point to southern neighbours, WR HB does not demonstrate that the building heights, as proposed, preserve the environmental amenity of neighbouring properties. In turn in regard to the height of buildings standard contravention, under cl 4.6(4)(a)(i) of WLEP, I am not satisfied that WR HB has demonstrated the matter required to be demonstrated under cl 4.6(3)(a). This finding means that, in light of the height of building standard contravention, consent must not be granted in this instance.

40. On the question of whether there are sufficient environmental planning grounds to justify contravening the height of buildings development standard, I make the same conclusions as in regard to the contravention of the FSR development standard (at [34]).

Conclusion

41. The proposal would contravene WLEP development standards relating to FSR and height of buildings. For the reasons outlined above, in this instance, the facultative powers of cl 4.6(2) of WLEP are not available. In these circumstances, there is no jurisdiction to grant consent.

Orders

42. The Court orders that:

1. The appeal is dismissed.

2. Development application 519/2021 for alterations and additions to an existing residential flat building at 88 Francis Street Bondi Beach is determined by refusal of consent.

3. The exhibits are returned except Exhibits 1, A, B and C which are retained.

…………………………..

P Walsh

Commissioner of the Court

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Decision last updated: 03 November 2022