Bardari Pty Ltd ATF the BHK Trust v Waverley Council

[2018] NSWLEC 1363

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bardari Pty Ltd ATF the BHK Trust v Waverley Council [2018] NSWLEC 1363
Hearing dates:	12-13 June 2018
Date of orders:	17 July 2018
Decision date:	17 July 2018
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The orders of the Court are: (1)   The Clause 4.6 written request to vary the height control in Waverly Local Environmental Plan 2012 is upheld. (2)   The appeal is upheld. (3)   Development application DA13/2017, for demolition of existing structures and the construction of a mixed use building over five levels at 1 Sir Thomas Mitchell Road, Bondi Beach is approved subject to the conditions of consent at Annexure A. (4)   The exhibits, other than Exhibits 1, 2, 8 and A, are returned.
Catchwords:	DEVELOPMENT APPLICATION: Mixed use development, impact on neighbouring properties, heritage, height
Legislation Cited:	Environmental Planning and Assessment Act 1979 Waverley Development Control Plan 2012 Waverley Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Bardari Pty Ltd ATF Trust (Applicant) Waverley Council (Respondent)
Representation:	Counsel: S Duggan SC (Applicant)   Solicitors: Mills Oakley (Applicant) S Patterson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2017/98301
Publication restriction:	No

Judgment

1. This is an appeal against Waverley Council’s deemed refusal of development application No. DA13/2017. The development application (DA) seeks consent for the construction of a mixed use building over five levels at 1 Sir Thomas Mitchell Road, Bondi Beach (the site).

The Proposal

2. Specifically the DA proposes:

• Demolition of existing residential flat building and brick out-building

• Construction of a five level mixed use building, containing ground floor commercial tenancy, residential foyer, waste, storage and bicycle parking areas with four storeys above containing seven residential units (3 x 1 bedroom and 4 x 2 bedroom).

The site and its context

3. The site is triangular in shape and has a total area of 247.7 square metres. The site is legally known as SP 20592.

4. The site currently contains a three-storey residential flat building, known as Sir Thomas Mitchell Mansion, a brick outbuilding in the western corner and garden beds fronting Sir Thomas Mitchell Road.

5. The site has pedestrian access from Sir Thomas Mitchell Road. The site has no vehicular access. The site is located in the Bondi Beach Conservation Area and Bondi Beachfront Area.

6. Adjoining development consists of:

• To the north, no.54 Campbell Parade, a four-storey residential flat building.

• To the east, two buildings, no.38-48 Campbell Parade, a four-storey building containing serviced apartments. This building (“Cairo Mansions”) is a heritage item, identified in Schedule 5 of Waverley Local Environmental Plan 2012 (WLEP 2012). The site also adjoins no.36 Campbell Parade, a four-storey residential building.

• To the south west is Sir Thomas Mitchell Road. On the opposite side of the road are a number of two-storey walk up residential flat buildings.

• To the west is Lamrock Place. On the opposite side of Lamrock Place is a two-storey residential building.

7. The site is located approximately 115m to the west of Bondi Beach Park and near the corner of Campbell Parade which provides the major shopping strip in the beach environs. The locality is characterised by mixed use development to the east along Campbell Parade and low and medium density residential flat development to the west along Sir Thomas Mitchell Road.

Planning framework

8. The site is located within the B4 Mixed Use zone of the WLEP 2012 and the development is permissible in the zone. Relevantly, a 15m building height standard applies under cl 4.3 of WLEP 2012 (which in accordance with all NSW standard template LEPs is measured from existing ground level). The proposal has a non-compliance with this standard. The proposal is seen to satisfy other LEP controls.

9. The proposal is also affected by Waverley Development Control Plan 2012 (WDCP 2012). Relevantly the proposal is non-compliant with the four storey height control and 12.5m external wall height control contained in the DCP (Part E2 cl 2.2.2).

Issues before the hearing

10. In accordance with the Court’s requirements, in a hearing such as this, Council is required to identify matters that it contends should cause the Court, in exercising the functions of the consent authority, to refuse the application or impose certain conditions. These contentions represent contested issues between the parties and are generally the point of focus in a hearing.

11. In this matter, the dialogue processes between the parties and the relevant experts leading up to the hearing, resulted in agreed amending plans and without prejudice conditions. These changes, to the application originally before the Court, have placed Council in a position where its contentions have now been adequately addressed. That is, Council indicated in the hearing, mindful of the expert opinions provided by its experts, that it is not now pressing any contentions based on the amended plans (Exhibit A) and without prejudice conditions.

12. The experts involved in the hearing should be mentioned for the record. The applicant’s experts were: Mr B Black (planning) Mr A Cadogan (urban design) and Mr S Davies (heritage). The Council’s experts were: Mr J Vescio (planning), Ms G Morrish (urban design) and Mr C Brady (heritage).

13. There were nonetheless objections raised by third parties in the course of the proceedings. In this instance the matters raised by objectors are considered as contested issues and will provide the focus of the rest of the judgement. The issues raised can be separated into three, which are first described then considered below.

Issues raised by objectors

Impact on 38-48 Campbell Parade Bondi

14. Mr A Darroch, a town planner, spoke on behalf of the owners of this four storey building which fronts Campbell Parade but shares a boundary with the subject land to its rear. The property is used as serviced apartments. The key concern was in regard to the impact on the rear, or west, facing units oriented towards the common boundary with the subject site. While the existing buildings on both this site and the subject land are built quite close to the common boundary, the upper two levels enjoy an outlook and good solar access, and the concern was in regard to amenity effects of the proposed development on these upper rear units. There was also a concern about direct privacy effects (noise and light spill impacts more so than visual) in regard to windows at Level One.

Consideration

15. In his evidence Mr Darroch acknowledged the changes to the proposal contained in the amended plans and indicated that they addressed a number of the concerns which had been raised. I also note that the setting back of the proposed development from the shared boundary at the north-east, and the provision of obscure glazing and louvre screens near the common boundary on Levels 1-4 would reasonably address amenity concerns for the rear units in 38-48 Campbell Parade. I am also satisfied that the proposed window arrangements at Level One is satisfactory, given that the proposal provides for louvre screening of these windows, and Ms Morrish’s comments that it was an improvement on the existing arrangements.

16. Some concerns remained about view loss from the top floor, which were suggested to be in part as a consequence of a breach of the applicable height control. With a mind to the setting, including the height juxtaposition between the top level of 38-48 Campbell Parade and the roof of the proposal, I am satisfied that reasonable view sharing is occurring here.

Impact on 16/54 Campbell Street Bondi

17. The owner and occupier of this unit, expressed concern about the impact of the development on amenity enjoyed from it. Unit 16 is a studio unit and the owner particularly values the light which comes into the unit from its windows and onto the balcony. The central enjoyment of the home was associated with this light access, and it was a key reason for her recent purchase of the home. The proposal has the potential to make it feel like living in a “tunnel” (rather than the current openness) according to the owner. Concerns were also expressed about privacy – given the proximity of the proposed development; and loss of the district views, generally towards the south, which are available at present from the balcony. The owner recognised the changes which had occurred with the amendments to the plans as providing for reduced impacts when compared to the proposal as originally notified.

Consideration

18. A particular point of attention in the work of the experts which led to the amended plans was the proposed building bulk in the vicinity of Unit 16, 54 Campbell Street (Exhibit 5, page 2). The key outcome of this attention was agreement to setting back of the building in the area nearest to Unit 5 some 2.5m from the common boundary. What might be described as a trade-off occurred here with the stairwell within the proposed development shifting further to the north to abut the property boundary. However this building element is offset to the west from Unit 16.

19. In regard to privacy, the experts agree that the design configuration, with the building setback changes and substantially reduced potential to look into Unit 16 in the near proximity of its balcony, resolve this issue. I accept this finding recognising that there are no window openings in the near vicinity of the balcony or the windows to Unit 16. There is a window further to the west on this northern façade of the top level of the proposal (Unit 7), however the low point of this window is relatively high on the wall (its “sill” point is 1.5m above floor level). Given the floor level of Unit 16, 54 Campbell Street sits considerably below proposed Unit 7, the capacity to overlook from this window is negligible.

20. In regard to loss of natural light, I note that the planning experts are in agreement that this issue is satisfactorily addressed as a consequence of the 2.5m boundary setback in the area nearest to Unit 16 – this was suggested as providing “breathing space” between the buildings. I recognise that the proposal does have a non-compliance in regard to WLEP 2012’s building height control (with height, prima-facie, a factor in what might be a sense of enclosure experienced at Unit 16). However the amount of exceedance is under 300mm and the non-compliance does not occur in the vicinity of Unit 16. I agree with Ms Duggan, here that the setting presents as one where Unit 16 has experienced some benefit in terms of natural light as a consequence of the existing building on the subject site being well under the height limits applying to the site. I note DCP 2012’s height controls but agree with the planning and urban design experts that the building setbacks and recessing adequately address the objectives to the DCP controls. Overall, the proposal provides a satisfactory balance in maintaining a reasonable level of amenity at Unit 16 while allowing permissible development on the subject land.

21. In regard to view loss, again I note the experts believe the proposal before the Court would maintain some amenable district and sky views from the balcony and windows at Unit 16. I accept this position and mention that an existing large tree (or trees) on the premises of 54 Campbell Street is a factor in the limitations to views available from Unit 16. There may be other issues preventing the trimming of this tree by the body corporate of 54 Campbell Street, nonetheless it results in the remaining view available to Unit 16 being a side view to the south. Side views of this kind are difficult to maintain in higher density settings such as this and in this case I conclude that a reasonable balance has been achieved.

Heritage Concerns

22. A spokesperson spoke on behalf of the Bondi Beach Precinct. It was argued that this building warranted heritage listing. The suggestion was that it enjoyed better heritage credentials than Cairo Mansions - an already listed building. The connection with Sir Thomas Mitchell, a notable NSW surveyor-general with connections to Bondi, warranted considerable weight (mindful of the building name). The Precinct has made submissions to Council requesting the building be heritage listed, and that it be conserved. The proposed modern building was seen to be a negative intrusion into the streetscape, and would intrude unreasonably into the conservation area.

Consideration

23. According to the heritage experts giving evidence at the hearing, the portico, at the front of the building, despite the fact that it had been relocated from another building (suggested by the experts to be the nearby Cairo Mansions) was considered to have some significance to the community. In turn a condition was agreed to make efforts to seek an alternative location for it. The heritage experts agreed that having regard to the conditions and design solutions put forward in the amended plans following joint conferencing, the subject building is not required to be conserved.

24. The experts noted that, despite submissions seeking for this to occur, Council has not agreed to support a local heritage listing for the subject building. There is insufficient expert evidence to suggest that the building warrants further particular heritage attention in the assessment of this DA. While I note the submissions, I am satisfied that demolition of the existing building, and the proposal more generally, does not unreasonably impinge on local heritage values, mindful of the agreed position expressed by those with specialised knowledge in the matter and the provisions of WDCP 2012 (cl 2.17 in regard to “Infill Buildings”).

Building height non-compliance

25. The amended proposal exceeds the 15m maximum building height control applying to the land under WLEP 2012. According to the evidence, the non-compliance reaches a maximum of 292mm, only. The non-compliance occurs at the Western end of Unit 7 (on the top level of the proposed building of course). Clause 4.6 of the LEP provides for variations to this height standard provided certain criteria can be met. A written request was made by the applicant (Exhibit H), addressing the relevant criteria. I am satisfied that: (i) the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6 (3), and (ii) the proposed development will be in the public interest in that it is consistent with the height standard objectives and the objectives for the applicable (B4 Mixed Use) zone.

Conclusions

26. The position before this hearing is that as a consequence of amendments to the proposal and agreed conditions to be imposed on any development consent, Council’s urban design, planning and heritage experts have come to the conclusion that the amended proposal warrants approval. I have considered this evidence along with the evidence of the applicant’s experts. I have also considered the submissions and evidence provided by, and on behalf of, local residents and property owners who feel the proposal brings unreasonable adverse effects.

27. Having regard to the planning provisions applying to the proposal, I accept the agreement of the planning experts, and the Council’s submission, that it is satisfied with the development application, as amended. I am satisfied that consent can be granted to the application in accordance with the agreed conditions.

Orders

28. The orders of the Court are:

1. The Clause 4.6 written request to vary the height control in Waverly Local Environmental Plan 2012 is upheld.

2. The appeal is upheld.

3. Development application DA13/2017, for demolition of existing structures and the construction of a mixed use building over five levels at 1 Sir Thomas Mitchell Road, Bondi Beach is approved subject to the conditions of consent at Annexure A.

4. The exhibits, other than Exhibits 1, 2, 8 and A, are returned.

____________

P Walsh

Commissioner of the Court

Annexure A (189 KB, pdf)

Plans (1.34 MB, pdf)

Decision last updated: 17 July 2018