Bondi Beach Ventures Pty Ltd v Waverley Council

[2023] NSWLEC 1274

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bondi Beach Ventures Pty Ltd v Waverley Council [2023] NSWLEC 1274

Hearing dates:

Conciliation conference on 21 February 2023

Date of orders:

02 June 2023

Decision date:

02 June 2023

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay those costs of the respondent that were thrown away as a result of amending the development application in the sum of $18,000 within 28 days.

(2) The applicant’s written request prepared by GSA Planning dated April 2023, pursuant to clause 4.6 of the Waverley Local Environmental Plan 2012, to vary the height of buildings development standard in clause 4.3 is upheld, a copy of which is Annexure “A”.

(3) The appeal is upheld.

(4) Development consent is granted to development application DA-271/2022 for the demolition of existing buildings on site, amalgamation of two lots and construction of a 4-storey shop top housing building with two levels of basement parking, ground floor retail and residential units above, subject to conditions in accordance with Annexure “B”.

Catchwords:

APPEAL – development application – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 4.17

Environmental Planning and Assessment Regulation 2021, s 38, Sch 7

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cll 28, 30

Waverley Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 5.10, 5.21, 6.1, 6.2, 6.5, 6.9, 6.14, 6.15

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130

Texts Cited:

Apartment Design Guide

Waverley Community Participation Plan 2019

Category:

Principal judgment

Parties:

Bondi Beach Ventures Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
N Palmer (Solicitor) (Applicant)
K Mortimer (Solicitor) (Respondent)

Solicitors:
Baron & Associates (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/282173

Publication restriction:

Nil

Judgment

1. These proceedings arise following the Waverley Council's (Council) deemed refusal of the applicant’s DA-271/2022 for demolition and site amalgamation of two lots to allow construction of a 4-storey shop top housing building with two levels of basement parking, 2 x ground floor retail and 16 residential units above at 34-38 Hall Street, Bondi Beach (site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 21 February 2023. I presided over the conciliation conference. During the conference the applicant agreed to amend the application to address the contentions raised by the Council and some of the concerns raised by the local objectors. The amendments include the following design changes:

1. The proposed driveway to Consett Avenue has been narrowed, and now only one car lift is proposed for the development. A low planter has been added in the space previously proposed for the wider driveway;

2. Residential access to the development is now proposed from Consett Avenue, rather than Hall Street, and the ground floor layout of the proposed development has been redesigned to orientate the retail tenancies to the entirety of the Hall Street frontage;

3. The proposed spiral stairs at the rear of the building have been deleted;

4. The garden at the rear of the site is now proposed as a communal space for the development, rather than a private courtyard;

5. Privacy screens and planters have been added to the south-facing balconies; and

6. The proposed development is now compliant with the building envelope fixed by the Council’s development control plan and the height of the building has been reduced by 0.250RL.

(amended DA).

3. Following the amendment of the DA the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the decision 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 Environmental Planning and Assessment Act 1979 (EPA Act) to grant consent to the development application subject to conditions.

5. There are jurisdictional preconditions that must be satisfied before this function can be exercised. These matters are identified in the parties’ joint jurisdictional submission accompanying the s34 agreement and I am satisfied about the following matters.

EPA Act

Community Participation (Schedule 1, Division 2, cl 7 (1))

6. The original DA was notified and advertised from 11 July 2022 to 3 August 2022 in accordance with the Waverley Community Participation Plan 2019 (WCPP) and there were 39 separate written objections to the DA. The amended DA was notified from 31 March 2023 to 11 April 2023 to those persons who objected to the original notification.

Conditions

7. The agreement includes the imposition of conditions which are imposed under s 4.17(1) and (5) of the EPA Act.

Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021)

8. The DA is for 'BASIX development' as it involves the erection of a BASIX building, see Sch 7 of the EPA Reg 2021.

9. The amended DA is accompanied by:

1. a BASIX Certificate No. 1304391M_04 dated 31 March 2023; and

2. a NatHERS Certificate No. RBVF4B8OU8 dated 31 March 2023.

State / Regional Environmental Planning Policies

10. The State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) applies to the site.

11. Section 4.6(1) of the RH SEPP precludes the granting of development consent unless the consent authority has considered relevantly whether the land is contaminated.

12. As outlined in the Statement of Environmental Effects, the historic use of the land the subject of the DA has been residential with ground floor retail. On 14 March 2023, GSA Planning provided a letter to Council confirming that as at 1943 the site contained two separate residential tenancies. The use of the site is proposed to remain as residential with ground floor retail.

13. On the basis of this material, s 4.6(2) of the RH SEPP is not engaged and consideration of a report specifying the findings of a preliminary investigation of the site is not required. The site has been used on a long-term basis for residential uses and there is no evidence of potentially contaminating land activities occurring on the site.

14. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) applies to the site and the amended DA.

15. The DA was referred to the Waverley Design Excellence Advisory Panel, and considered on 10 August 2022, as required by cl 28(1) of SEPP 65.

16. Clause 28(2) of SEPP 65 requires a consent authority to consider specified matters. Further, cl 30(2) of SEPP 65 provides that development consent must not be granted, ‘if, in the opinion of the consent authority, the development does not demonstrate that adequate regard has been given to –

(a)    the design quality principles, and

(b) the objectives specified in the Apartment Design Guide for the relevant design criteria’.

17. A Design Verification Report prepared by EM BE CE dated 21 June 2022 has verified the proposal is consistent with the nine Design Principles in SEPP 65 and the contentions regarding the Apartment Design Guide and Design Quality Principles have been resolved.

Waverley Local Environmental Plan 2012 (LEP)

Permissibility

18. The site is zoned E1 Local Centre Zone under the LEP. Development for the purposes of shop top housing is permissible with consent in the E1 Local Centre Zone.

Height (cl 4.3)

19. The amended DA complies with the height development standard of 13 metres in cl 4.3 of the LEP and the Height of Buildings Map, except for the projection of part of the top floor on the eastern end of the building of up to 0.4 m above the height limit and the lift overrun which projects 1.65 m above the height limit.

20. A cl 4.6 request has been prepared to address the non-compliance which addresses the matters set out at cl 4.6(3) of the LEP including having regard to the tests set out in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118.

21. Pursuant to cl 4.6(4)(a), the Court, in exercising the functions of the consent authority, must be satisfied of both of the matters in cl 4.6(4)(a)(i) and (ii), being:

(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…

22. Only if the requirements in cl 4.6(3) and (4) are met will the power in cl 4.6(2) to grant consent to development that contravenes the development standard be enlivened: RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 per Preston CJ at [24].

23. I am satisfied for the reasons outlined in the written request that it is unreasonable and unnecessary to comply with the height limit in the circumstances of this case and that there are sufficient environmental planning grounds to justify contravening the development standard.

24. I am also satisfied that the proposed development will be in the public interest because it is consistent with the relevant objectives of the cl 4.3 development standard and the objectives for development within the E1 Zone in which the development is proposed to be carried out.

25. Finally, I accept after a consideration of the matters identified in cl 4.6(5) of the LEP that the concurrence of the Planning Secretary is not required having regard to Planning Circular PS 20-002 dated 5 May 2020.

Floor space ratio (FSR) (cl 4.4)

26. Clause 4.4 and the Floor Space Ratio Map provide that the maximum FSR for a building on the site is 2:1. The amended DA has a proposed FSR of 2:1 and is compliant with the standard.

Acid Sulfate Soils (cl 6.1)

27. Clause 6.1 of the LEP requires development consent for any works on land shown on the Acid Sulfate Soils Map as being in a class specified for those works. The site is mapped as being Class 5 on the Map. Development involving works within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land requires consent. The Douglas Partners Geotechnical Report notes:

“The depth of excavation is not expected to exceed RL 5 m AHD. It is therefore considered that development consent relating to acid sulphate soils is not required.”

28. Accordingly, cl 6.1(3) is not triggered and an acid sulfate soils management plan is not required before consent can be granted.

Earthworks (cl 6.2)

29. Earthworks are included as part of the amended DA and I am satisfied that the matters raised by cl 6.2(3) of the LEP have been addressed in the Geotechnical Report that accompanied the Class 1 application. In that regard I note that the report has investigated the existing rock types and considered excavation methods to limit effects on nearby residents and developments. Disposal methods and destinations for excavated material will be outlined in a future construction management plan.

Active street frontages (cl 6.5)

30. Clause 6.5 applies in the B4 Mixed Use Zone to land identified on the “Active Street Frontages Map” (ASF Map). The entire frontage of the Consett Avenue frontage and the Hall Street frontage of the site is marked in red on the ASF Map. Clause 6.5 then requires:

(3) Development consent must not be granted to the erection of a building, or a change of use of a building, on land to which this clause applies unless the consent authority is satisfied that the building will have an active street frontage after its erection or change of use.

(4) Despite subclause (3), an active street frontage is not required for any part of a building that is used for any of the following—

(a) entrances and lobbies (including as part of mixed use development),

(b) access for fire services,

(c) vehicle access.

(5) In this clause, a building has an active street frontage if all premises on the ground floor of the building facing the street are used for the purposes of business premises or retail premises.

31. The development does have active street frontages as required on both frontages. In that respect it does have a retail frontage to both Hall Street and Consett Avenue and the residential lobby and vehicular access on Consett Avenue are permitted under subcl 6.5(4).

Design Excellence (cl 6.9)

32. Clause 6.9 does not apply to the development, as it only applies to development that involves the erection of a new building, or external alterations to an existing building, that has (or, as a result of the development, would have) a building height equal to, or greater than, 15 metres: cl 6.9(2). The development will not be or exceed 15 metres.

Waste minimisation and recycling (cl 6.14)

33. Clause 6.14 applies to the erection of a building for the purposes of shop top housing. Pursuant to cl 6.14(3), the consent authority must be satisfied that:

(a) the development maximises opportunities, through design and integration, to provide waste and recycling storage and collection facilities, and

(b) all waste and recycling storage and collection facilities are appropriately sized to meet the waste generated by the occupants, and

(c) the development provides for safe and equitable access to waste and recycling storage and collection facilities.

34. The proposed development provides a residential bulky garbage room, residential garbage room and retail garbage.

Stormwater management (cl 6.15)

35. Clause 6.15 applies to Zone E1 and pursuant to cl 6.15(3), requires the consent authority to be satisfied that the development:

(a) is designed to maximise the use of water permeable surfaces on the land, considering the soil characteristics affecting on-site infiltration of water, and

(b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c) avoids significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or, if the impact cannot be reasonably avoided, minimises or mitigates the impact.

36. The DA was accompanied by Stormwater Plans prepared by Stantec Australia, that proposes a sediment basin at the low point of the site (see the Sediment and Erosion Control Plan), and a Rainwater Tank + OSD in the Basement.

37. The Rainwater Tank is intended for use for irrigation and car wash use, after treatment of the water.

38. On the basis of the Stormwater Plans and Council’s conditions of consent, the requirements specified in cl 6.15 are addressed.

39. Having regard to all of the above matters, the jurisdictional prerequisites to the proper exercise of the power to approve the development application have been met. I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

40. The Court notes:

1. The applicant has amended Development Application No. DA-271/2022 (the development application) with the agreement of the respondent, Waverley Council, as the relevant consent authority pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 to rely on the following amended plans and documents:

1. Architectural Plans prepared by EM BE CE of Project No: 22005 including the following:

Plan Number and Revision	Plan Description	Plan Date
001, Rev B	Materiality and Photomontage	21.06.2022
050, Rev D	Demolition Plan	21.06.2022
100, Rev G	Proposed B02 Plan	27.02.2023
101, Rev H	Proposed B01 Plan	08.03.2023
102, Rev K	Proposed L01 Plan	18.04.2023
103, Rev I	Proposed L02 Plan	21.03.2023
104, Rev I	Proposed L03 Plan	21.03.2023
105, Rev I	Proposed L04 Plan	21.03.2023
106, Rev I	Proposed Roof Plan	21.03.2023
201, Rev H	Proposed North Elevation	21.03.2023
202, Rev H	Proposed West Elevation	21.03.2023
203, Rev F	Proposed South Elevation	21.03.2023
300, Rev H	Proposed Section A	21.03.2023
301, Rev G	Proposed Section B	21.03.2023
302, Rev B	Proposed Section C	21.03.2023
421, Rev D	Adaptable Apartment A	21.06.2022
422, Rev E	Adaptable Apartment B (Pre-Adaption)	21.03.2023
423, Rev E	Adaptable Apartment B (Post-Adaption)	21.03.2023
424, Rev E	Adaptable Apartment C (Pre-Adaption)	21.03.2023
425, Rev E	Adaptable Apartment C (Post-Adaption)	21.03.2023

2. Landscape Plan No. LDA-02 to LDA-07, all Revision F, and

3. Documentation prepared by Ground Ink Landscape Architects, dated 28 March 2023 and received by Council on 13 April 2023.

4. BASIX Certificate No. 1304391M_04 prepared by Stantec Australia Pty Ltd and dated 31 March 2023 and received by Council on 13 April 2023.

5. NATHERS Certificate No. RBVF4B8OU8 prepared by Stantec Australia Pty Ltd and dated 31 March 2023 and received by Council on 13 April 2023.

6. Transport Impact Assessment Report prepared by Stantec Australia Pty Ltd and dated 3 April 2023 and received by Council on 13 April 2023.

7. Clause 4.6 Exception to Development Standard – Height of Buildings Written Request prepared by GSA Planning and dated April 2023.

8. BCA Assessment Report prepared by BCA Logic dated 15 June 2022, and received by Council on 5 July 2022.

9. Geotechnical Report prepared by Douglas Partners dated June 2022, and received by Council on 5 July 2022.

10. Operational Waste Management Plan, Revision C prepared by Elephant Foot Consulting dated 15 June 2022 and received by Council on 5 July 2022.

11. Ausgrid Network Standards NS141 Kiosk Substation Site Selection letter prepared by AA Power Engineering, dated 18 April 2023.

(the amended application).

2. The applicant filed the amended application with the Court on 28 April 2023.

3. As a result of the amendment of the development application, the applicant agrees to pay the respondent’s costs pursuant to s 8.15(3) of the EPA Act, as ordered in [41(1)] below.

41. The Court orders:

1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay those costs of the respondent that were thrown away as a result of amending the development application in the sum of $18,000 within 28 days.

2. The applicant’s written request prepared by GSA Planning dated April 2023, pursuant to clause 4.6 of the Waverley Local Environmental Plan 2012, to vary the height of buildings development standard in clause 4.3 is upheld, a copy of which is Annexure “A”.

3. The appeal is upheld.

4. Development consent is granted to development application DA-271/2022 for the demolition of existing buildings on site, amalgamation of two lots and construction of a 4-storey shop top housing building with two levels of basement parking, ground floor retail and residential units above, subject to conditions in accordance with Annexure “B”.

…………………

S Dixon

Senior Commissioner of the Court

Annexure A (1450948, pdf)

Annexure B (479741, pdf)

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Decision last updated: 02 June 2023