Bondi Residence Pty Ltd v Waverley Council

[2024] NSWLEC 1297

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bondi Residence Pty Ltd v Waverley Council [2024] NSWLEC 1297

Hearing dates:

21-22 February 2024

Date of orders:

04 June 2024

Decision date:

04 June 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) The development application DA 9/2023 for the demolition of the existing building and the construction of a new five-storey mixed use shop top housing development at 14-18 Campbell Parade, Bondi Beach, is determined by the refusal of consent.

(3) The exhibits are returned.

Catchwords:

APPEAL – development application – mixed use development with ground floor commercial and upper level residential – breach of the height development standard – view loss – adjacent to a heritage item and in a heritage conservation area

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, s 39

Environmental Planning and Assessment Regulation 2021, s 38

Standard Instrument (Local Environmental Plans) Amendment (Exceptions to Development Standards) Order 2023

Standard Instrument (Local Environmental Plans) Order 2006, cl 8

State Environmental Planning Policy (Housing) 2021, Ch 4, s 147, Sch 7A cl 8

Waverley Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 5.10, 6.9

Cases Cited:

Abrams v Council of the City of Sydney [2019] NSWLEC 1583

Gan v City of Sydney Council [2021] NSWLEC 1370

Gejo Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1712

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

Rebel MH Neutral Bay Pty Ltd v North Sydney Council (2018) 241 LGERA 107; [2018] NSWLEC 191

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

SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112

Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140

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

Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115

Texts Cited:

NSW Planning and Environment Apartment Design Guide 2015

Waverley Development Control Plan 2022

Category:

Principal judgment

Parties:

Bondi Residence Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
N Hammond (Respondent)

Solicitors:
Baron and Associates (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2023/96417

Publication restriction:

Nil

Judgment

1. COMMISSIONER: At 14-18 Campbell Parade, Bondi Beach, Bondi Residence Pty Ltd seeks development consent for the demolition of the existing building and the construction of a five-storey shop top housing development with retail on the ground floor and seven residential apartments above. Bondi Residence lodged a development application with Waverley Council (the Council) on 16 January 2023. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged this appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. At the hearing, the Court exercised the functions of the consent authority pursuant to s 39 of the Land and Environment Court Act 1979 (LEC Act) to approve an amendment to the development application in accordance with s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). The amendments include the provision of an amended acoustic report, design changes to respond to the evidence of the town planners and urban designers, an updated request concerning the breach of the height development standard, and updated shadow diagrams and photomontages.

3. Notwithstanding the amendments to the development application, the Council remains opposed to the grant of development consent on the basis that the proposed building is of excessive height, bulk and scale, has unreasonable impacts on views from and solar access to neighbouring developments, does not exhibit design excellence, and detracts from the heritage significance and character of the area.

4. For the reasons that are set out below, I have determined that development consent should be refused on the basis that I am not satisfied that the written request adequately addresses that there are sufficient environmental planning grounds to justify the contravention of the height development standard. In addition, I have found that the proposed development has unacceptable impacts on views and unacceptably detracts from the heritage significance of the adjacent heritage item and the heritage conservation area.

The site and the locality

5. The site is comprised of Lots 8 and 9 of DP10606, which is known as 14-18 Campbell Parade. It has an area of 310m² and an eastern frontage of 14.63m to Campbell Parade. The site is irregular in shape, with a rear boundary of 15.12m that is not parallel to the front boundary, and side boundaries of 19.33m and 23.165m. An aerial image of the subject site is at Figure 1.

6. The site falls from the west, at the rear of the site, to the east, by approximately 6.3m. The topography of Bondi is such that land falls generally from the west to the east toward the beach, and the residential flat buildings to the west of the site along Francis Street are located on higher topography and enjoy views to the beach over the site.

7. The site is currently occupied by a three-storey shop top development. The adjacent site to the north contains a three-storey shop top housing development, and is a locally listed heritage item known as Remola Mansions. The adjacent site to the south is a four-storey shop top housing development.

8. The site is within the Campbell Parade Heritage Conservation Area (the HCA), which extends the full length of Campbell Parade, bounded to the west by the properties that have frontage to Campbell Parade and to the east by the coast.

The planning framework

9. The site is zoned E1 Local Centre pursuant to the Waverley Local Environmental Plan 2012 (WLEP). The objectives of the E1 zone are as follows:

• To provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area.

• To encourage investment in local commercial development that generates employment opportunities and economic growth.

• To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council’s strategic planning for residential development in the area.

• To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

• To strengthen the viability of Waverley’s existing business centres as places of vitality for investment, employment and cultural activity.

• To maximise public transport patronage and encourage walking and cycling.

• To encourage the provision of affordable housing.

• To provide for a range of other uses, including light industrial, that serve the surrounding neighbourhood without impacting on the amenity of the adjoining uses.

• To ensure development is of a height and scale that achieves the desired future character of the neighbourhood.

• To promote employment growth by giving preference to commercial development over residential development.

• To provide active ground floor uses to create vibrant centres.

10. Clause 4.3 of the WLEP establishes a height development standard for the site, which is 15m. The proposed development breaches the height development standard, with a height of up to 15.6m.

11. Clause 4.4 of the WLEP establishes a development standard for floor space ratio (FSR), which requires the FSR for the site to be no greater than 3:1. The proposed development complies with this standard, and has a FSR of 2.7:1.

12. Clause 4.6 of the WLEP allows the Court, in exercising the functions of the consent authority, to grant development consent to the proposed development notwithstanding the breach of the height development standard. The terms of cl 4.6 were amended by the Standard Instrument (Local Environmental Plans) Amendment (Exceptions to Development Standards) Order 2023. However, cl 8 of the Standard Instrument (Local Environmental Plans) Order 2006 operates such that the amendments made by the amending order do not apply to a development application that was made prior to its commencement on 1 November 2023. As such, the applicable relevant wording of cl 4.6 with respect to this development application is as follows:

4.6 Exceptions to development standards

(1) The objectives of this clause are as follows—

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(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. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(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.

(6) …

13. As the site is located in a heritage conservation area, cl 5.10(4) of the WLEP requires the consideration of “the effect of the proposed development on the heritage significance of the item or area concerned”.

14. Clause 6.9 of the WLEP relates to design excellence, and applies to the proposed development as it is new building in the E1 zone that exceeds a height of 15m, consistent with cl 6.9(2). Clause 6.9(3) precludes the grant of development consent “unless the consent authority is satisfied the development exhibits design excellence.” Clause 6.9(4) then sets out the factors required to be considered in determining whether the development exhibits design excellence. It provides:

(4) In determining whether the development exhibits design excellence, the consent authority must have regard to the following matters—

(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b) whether the form and external appearance of the development will improve the quality and amenity of the public domain,

(c) whether the development detrimentally impacts on view corridors,

(d) how the development addresses the following matters—

(i) the suitability of the land for development,

(ii) existing and proposed uses and use mix,

(iii) heritage issues and streetscape constraints,

(iv) the relationship of the development with other existing or proposed buildings on the same site or in the vicinity of the site in terms of height, bulk, separation, setbacks, modulation, amenity and urban form,

(v) (Repealed)

(vi) street frontage heights,

(vii) environmental impacts such as overshadowing, wind and reflectivity,

(viii) the achievement of the principles of ecologically sustainable development,

(ix) pedestrian, cycle, vehicular and service access, circulation and requirements,

(x) the impact on, and any proposed improvements to, the public domain,

(xi) the quality and integration of landscape design.

15. Chapter 4 of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) applies to the proposed development, pursuant to Sch 7A cl 8(2A) (the latter provision was introduced following the conclusion of the hearing). Section 147(1) of the SEPP Housing provides that:

(1) Development consent must not be granted to residential apartment development, and a development consent for residential apartment development must not be modified, unless the consent authority has considered the following—

(a) the quality of the design of the development, evaluated in accordance with the design principles for residential apartment development set out in Schedule 9,

(b) the Apartment Design Guide,

(c) any advice received from a design review panel within 14 days after the consent authority referred the development application or modification application to the panel.

16. The design principles for residential apartment development relate to context and neighbourhood character, scale and built form, density, sustainability, landscape, amenity, safety, housing diversity and social interaction, and aesthetics.

17. The provisions of the Apartment Design Guide (ADG) are also relevant pursuant to s 147(1)(b) of the SEPP Housing. However, s 147(3) of the SEPP Housing makes it clear that “subsection (1)(b) does not require a consent authority to require compliance with design criteria specified in the Apartment Design Guide.” Whilst the ADG is a mandatory consideration, strict compliance with the design criteria is not necessary. Some of the relevant provisions with which the Council says the development does not comply include Part 3D, concerning communal open space and facilities, Part 3E, which requires 7% of the site to be a deep soil zone, and Part 3F, which requires increased separation distances when adjacent to a different zone that permits lower density residential density.

18. The Waverley Development Control Plan 2022 (WDCP) also applies to the site. The site falls within the Campbell Parade South Character area, within the larger Bondi Beachfront area, pursuant to the WDCP, which includes sites with frontage to Campbell Parade from Lamrock Avenue to the north to Francis Street to the south. The description of existing buildings within Campbell Parade South Character area is as follows:

“Existing buildings have narrow frontages built to the street alignment, with notable facades that contribute to its Interwar heritage. Buildings are predominantly rendered masonry with parapets and a vertical expression through the use of bay or vertically proportioned windows, pilasters and a few balconies, typically enclosed. Existing buildings generally have a north-eastern orientation that takes advantage of the aspect and views over Bondi Beach.

Many sites contain heritage items and a large proportion of the area is located within the heritage urban conservation area. Many sites contain contributory buildings worthy of retention as they contribute to the overall character of the Area. These buildings are generally intact and consistent with other 1920s/30s precincts in Sydney.”

19. The controls for development in the Campbell Parade South Character area, which are contained within Part E2 Section 2.2.2 of the WDCP, include a maximum of four storeys (control (b)(i)), a maximum external wall height of 12.5m (control (b)(ii)), a requirement for attic levels or additional floors to be setback a minimum of 3m (Control (c)), a requirement for heritage and contributory buildings to maintain the existing character of the area “including narrow frontages and vertical expression” (Control (d)), a requirement for balconies not to project forward of the principal façade (Control (f)), and a requirement for roofs to not be visible from Campbell Parade (Control (h)(iv)). One of the desired future character objectives is to “ensure new development and major renovations are consistent with the existing character of the area”.

Objector evidence

20. The development application was notified between 22 February and 17 March 2023, and 54 submissions were received. In addition, the hearing commenced with a site inspection, at which a number of resident objectors spoke. The issues raised by the residents in their written submissions and onsite can be summarised as follows:

• Loss of views, privacy and access to sunlight.

• Incompatibility with the streetscape context, including inconsistency with the controls with respect to height, wall height and number of storeys.

• Insufficient landscaping.

• Does not meet design excellence requirements.

• Traffic and parking impacts.

21. At the site inspection, the current views to Bondi Beach were observed by the Court from a number of apartments on Francis Street, including 7/7 Francis Street, units 3 and 4 of 9 Francis Street, Units 3 and 4 of 11 Francis Street, Unit 4 of 13 Francis Street, and Unit 7 of 4 Francis Street.

Expert evidence

22. Expert opinion evidence on the town planning and urban design issues was given by:

• Mr George Karavanas, a town planner engaged by Bondi Residence;

• Mr Rohan Dickson, an urban designer engaged by Bondi Residence;

• Mr Timothy Williams, the manager of urban design and heritage at the Council; and

• Mr Stuart McDonald, a town planner engaged by the Council.

23. Mr Karavanas and Mr Dickson disagreed with Mr Williams and Mr McDonald on each aspect of the contentions raised that concern town planning and urban design, including issues of height, overshadowing, view loss, bulk and scale, character, and design excellence. Mr McDonald opines that the proposed building is of a height, bulk and scale that is not reasonably anticipated by the applicable planning controls and will therefore be inconsistent with both the existing and desired future character. His evidence is also that the departures from the built form controls cause overshadowing and view loss. Mr Williams and Mr McDonald consider that the proposed development seeks to squeeze five storeys on the site with inadequate floor-to-floor heights, and that the site is more suitable for a four-storey development. Mr Karavanas and Mr Dickson instead consider that the proposed building is largely compliant with the applicable controls, with only minor breaches and a recessive upper level, which are consistent with surrounding development, and that the overshadowing and view loss is acceptable in the circumstances. The evidence of these experts is considered in more detail below.

24. Expert opinion evidence on the impacts of the proposed development on the heritage significance of the conservation area and the adjacent heritage item was given by Mr James Phillips, a heritage expert engaged by Bondi Residence, and Mr Colin Brady, an architect and heritage expert engaged by the Council. Mr Phillips opines that the changes to the existing building over the years have removed all of the building’s contributory value, and that the proposed development presents a sensitive, articulated infill building that will form part of a cohesive group whilst providing references to original buildings in the street. Mr Brady, on the other hand, opines that the previous alterations have retained the overall proportions, scale and massing of the contributory building, which achieves cohesion with the buildings at 20-34 Campbell Parade, and that the proposed building has a poor cohesion with the existing buildings due to an absence of traditional linking elements. Their evidence is considered further below.

23. Expert opinion evidence on the acoustic impact of the plant and services equipment for the proposed development was given by Ms Hilary Pearce, an acoustic engineer engaged by the applicant, and Ms Kyle D’Alton, an environmental health officer employed by the Council. Ms Pearce and Ms D’Alton agree that mitigation measures proposed for the equipment, as well as conditions of consent, will ensure that the equipment will not have an unacceptable acoustic impact.

Breach of the height development standard

26. As set out above, the proposed development breaches the height development standard, with a height of up to 15.6m, representing a breach of 60cm above the height development standard of 15m. There are three areas where the proposed development breaches the standard:

• The rear roof hob, which has a height of 15.06m

• An area of the roof toward the front, including the front roof parapet, which has a height of 15.4m; and

• The centrally located lift overrun, which has a height of 15.6m.

27. As a result, development consent cannot be granted except in accordance with cl 4.6 of the WLEP. Clause 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied of the matters in cl 4.6(3) based on the content of a written request. Bondi Residence has provided a written request, as required.

28. Clause 4.6(4)(a)(ii) requires consideration of the objectives of the zone, and the objectives of the relevant development standard. The objectives of the height development standard in cl 4.3 of the 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 E2 Commercial Centre 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.

The written request

29. The written request concerning the breach of the height development standard is prepared by GSA Planning and dated January 2024.

30. To establish that compliance with the standard is unreasonable or unnecessary, the request relies on the first of the tests described in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827, that the objectives of the standard are met notwithstanding the contravention.

31. To address the objective to “ensure building heights preserve environmental amenity of neighbouring properties and public spaces and if appropriate, sharing views”, the written request outlines the potential impacts on privacy, solar access and views. With respect to solar access and views, the written request compares the impact of the proposed development with the impact of what it describes as a “compliant building”. With respect to the objective (d), to “establish building heights that are consistent with the desired future character of the locality”, the request relies on the approvals of other buildings on Campbell Parade that breach the height development standard.

32. The request also seeks to justify the contravention on the basis of grounds that it describes as environmental planning grounds, as follows:

• The orderly and economic use and development of land, in that full compliance with the height development standard would be an underutilisation of the site because it would result in a loss of gross floor area which is compliant with the applicable floor space ratio (FSR) development standard.

• Consistency with the height, bulk and scale of existing and approved development in the vicinity of the site.

• A front façade presentation that is compliant with the four storey control in the WDCP.

• To provide vertical circulation for future occupants with the internal lift.

• To avoid compromising design integrity, which would occur with a stepping of the built form down towards the front of the site.

• Lack of environmental impact.

The applicant’s position in support of the written request

33. Bondi Residence submits that the written request adequately establishes that the proposed development is consistent with the objectives of the zone and of the standard. Counsel points out that FSR and height development standards are ordinarily in tandem, and yet the proposed development complies with the FSR development standard, indicating that what is proposed is appropriate for the site, consistent with what is outlined in the request.

34. Bondi Residence also submits that, in considering the desired future character, it is appropriate that the request considers the tendency for greater height to be permitted in developments along the spine of Campbell Parade, as this is consistent with the Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115, in which Preston CJ of LEC found at [63]:

“This circularity is avoided if the term “desired future character” is construed as permitting regard to be had to matters other than only the development standard. On this construction, the desired future character of the neighbourhood or area can be shaped not only by the provisions of WLEP, including the development standards themselves, but also other factors, including approved development that contravenes the development standard.”

35. Bondi Residence submits that the request establishes that there are environmental planning grounds, and that these grounds are sufficient for the purpose of upholding the request.

The Council’s position on the written request

36. On the other hand, the Council submits that the Court would not be satisfied that the objectives of the height development standard have been met, as the environmental amenity of the neighbouring properties is not preserved by the proposed development.

37. The Council also submits that the desired future character consideration should not be as broad as that considered by the request. The Council points out that each area within the Bondi Beachfront Area has its own character statement, and that it is the character of that area that should be considered to determine whether the proposed development is consistent with the desired future character.

38. The Council also contends that the request does not adequately demonstrate that there are sufficient planning grounds to justify contravening the development standard.

The written request does not adequately demonstrate sufficient environmental planning grounds

39. On the wording of cl 4.6 of the WLEP that applies to the development application in these proceedings, I must be satisfied that the request adequately addresses the matters required to be demonstrated by sub-cl (3), including (at (3)(b)) “that there are sufficient environmental planning grounds to justify contravening the development standard.” As often cited, “the focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds” (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [24]).

40. I described the elements of satisfaction in Gan v City of Sydney Council [2021] NSWLEC 1370 as follows (at [84]):

“To determine if I am satisfied that there are sufficient environmental planning grounds advanced in the request, there are three elements for consideration. Firstly, the grounds advanced must constitute “environmental planning grounds”. Secondly, they must be tethered in some way to the breach of the development standard so as to justify, or inform, the breach. Thirdly, I must be satisfied that they are “sufficient” to justify, or inform, the aspect or element that contravenes the development standard.”

41. In the present proceedings, there are three elements that breach the height development standard. One is the lift overrun, for a lift that provides access to each floor of the building. I accept that equitable access to all levels of a building is an environmental planning ground which informs the breach of the height development standard insofar as it relates to the lift overrun. Ordinarily, this ground is sufficient to justify the exceedance of the height development standard by a lift overrun in circumstances where a lift is required to overrun the building in order to provide access to the upper floor.

42. However, although the lift overrun is the highest point of the proposed building, the breach above the height development standard is not constrained to the lift overrun. Instead, there are a second and third element that breach the height development standard. These are the rear roof hob and the front roof parapet. These elements are directly attributable to the fifth storey of the proposed development, as set out in the evidence of Mr McDonald. I consider that none of the environmental planning grounds advanced by the written request are sufficient to justify the contravention of these roof elements above the height development standard.

The orderly and economic use of land ground

43. This ground relies on compliance with the FSR development standard, which is 3:1. The proposed development has a FSR of 2.7:1. The written request acknowledges that full compliance with the height development standard would “necessitate the complete removal of the fourth-floor level (fifth storey) which would result in a loss of 114m² of gross floor area”. The request says that this would result in an FSR of 2.32:1 which is 0.68:1 below the FSR development standard. The argument advanced is that there is a reasonable expectation that a development will have a FSR that is close to the maximum, and that the removal of the fifth storey would represent an underutilisation of the site as a development site, contrary to the orderly and economic use and development of land.

44. I do not accept that a proposal that does not achieve “close to the maximum” FSR development standard is contrary to the “orderly and economic use and development of land”. Firstly, there is no evidence to support the assertion that the removal of the fifth storey would cause the proposed development to be uneconomic. Secondly, the orderly use and development of land would generally anticipate compliance with all the applicable development standards, including both FSR and height development standards. As acknowledged by the request, the FSR development standard is a maximum. There is no expectation that the full extent of the FSR development standard can be achieved on every site, or that every site can achieve close to the maximum. That is, the FSR development standard is a maximum, not an entitlement, and the utilisation of floor space that complies with a FSR development standard does not justify a breach of the height development standard (see Rebel MH Neutral Bay Pty Ltd v North Sydney Council (2018) 241 LGERA 107; [2018] NSWLEC 191 at [24]-[26] and [63], confirmed on appeal in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130).

The consistency ground

45. The request advances consistency in the context of the site as an environmental planning ground to support the breach of the height development standard. In particular, it says that the proposed development maintains a compliant street wall height, with the upper level setback 3m from the front alignment, and is consistent with other developments along Campbell Parade with a four-storey street wall and recessed fifth level.

46. Achieving consistency with existing development is an environmental planning ground that has been accepted as being sufficient to justify a breach of a development standard (see Gejo Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1712 (Gejo) at [45]; Abrams v Council of the City of Sydney [2019] NSWLEC 1583 (Abrams) at [47]-[49]; and SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112 at [90]).

47. However, in the present context, this environmental planning ground does not justify the exceedance of the height development standard. The site forms part of the Campbell Parade South character area, which is a defined area within the broader Bondi Beachfront character area. Within the Campbell Parade South character area, the written request has not identified any existing building with which the proposed development is consistent. Whilst the request identifies 34 Campbell Parade as having a “four-storey street wall and a recessed fifth level”, 34 Campbell Parade is a heritage item that is six storeys in total, and is separated from the proposed development by two buildings that are two and three storeys in height. The request does not provide any analysis of how the additional height, caused by the fifth storey, is justified in order to achieve consistency with other development in the vicinity of the site. The reliance on the height of approved buildings elsewhere along Campbell Parade is not sufficient to establish that the additional height on this site is justified to achieve consistency with the height, bulk and scale of existing and approved development. This is quite distinct from the circumstances in Gejo, Abrams and SJD DB2 Pty Ltd v Woollahra Municipal Council, in which the contravention of the height development standard enabled consistency with the predominant existing or emerging built form context, and a compliant building would not achieve that consistency. I am not satisfied that the request establishes any existing and emerging predominant character of built form that is four storeys with a recessed fifth storey which would justify the breach of the height development standard on this site.

48. Accordingly, this ground does not justify the contravention of the height development standard.

The compliant front façade presentation ground

49. The written request advances the ground that the front façade is compliant with the four-storey control in the WDCP, as an environmental planning ground to justify the breach of the height development standard.

50. This is not a planning ground that is tethered to the breach of the height development standard, so as to justify the breach. Even if there was a link between the four-storey façade presentation and the breach of the height development standard, I do not accept that this is sufficient to justify a breach of a development standard, given that the proposed development is expected to comply with both the storey control under the WDCP and the height development standard, and it complies with neither.

The vertical circulation ground

51. As set out above, I accept that equitable access to all levels of a building is an environmental planning ground which informs the breach of the height development standard insofar as it relates to a lift overrun. However, the breach in this instance is not confined to the lift overrun, and is caused by elements of the fifth storey. Therefore, the vertical circulation ground is not sufficient to justify the full lateral extent of the breach of the height development standard.

Lack of environmental impact ground

52. The avoidance of an environmental impact is an environmental planning ground, as it promotes one of the objectives of the EPA Act, to promote “good design and amenity of the built environment”.

53. However, this ground is based on a false premise. The fact is, and the request acknowledges, there are additional impacts caused by the breach of the height development standard. Those impacts are additional overshadowing to a window at the rear of the first-floor level of 7 Francis Street, a rear balcony at 9 Franci Street, two upper floor level habitable room windows at 10-12 Campbell Parade, and the communal open space at the rear of 10-12 Campbell Parade. There are also additional view impacts caused by the breach of the development standard, in particular to Unit 12 of 7 Francis Street.

54. Further, even if I was to accept that there is no impact from the additional height, the lack of impacts does not arise from the breach of the height development standard so as to justify the breach.

55. For those reasons, I do not accept that the lack of environmental impact ground justifies the breach of the development standard.

Design integrity ground

56. In raising the vertical circulation ground, the request also indicates that a compliant development would compromise design integrity as it would require a stepping of the built form down towards the front of the site. It states that the proposed design is “a well-designed outcome, with no impact to the amenity of adjoining properties as a result of the section of non-compliance”.

57. The breach arises from the fifth storey, which is contrary to the WDCP controls, and the argument that there is “no impact” is false, given the request’s acknowledgment of the impacts described above at [53]. Further, the request does not demonstrate that a stepping of the built form down towards the front of the site would produce a building that complies with the height development standard and has a compromised design in some way.

58. As a result, this ground is not sufficient to justify the contravention of the height development standard.

Development consent must not be granted

59. For the above reasons, I am not satisfied that the written request adequately addresses that there are sufficient environmental planning grounds to justify contravening the development standard. The grounds advanced either do not justify, or inform, the breach, or are not sufficient to justify the elements that breach the height development standard. I therefore do not reach the state of satisfaction required by cl 4.6(4)(a)(i) of the WLEP, and therefore, pursuant to cl 4.6(4), I am precluded from granting development consent.

60. There is therefore no need to consider whether the request has adequately addressed whether compliance with the standard is unreasonable or unnecessary, or whether the proposed development is in the public interest in accordance with cl 4.6(4)(a)(ii) of the WLEP.

61. However, I also consider that the proposed development should be refused on the basis of its unacceptable impacts on views from neighbouring development, and its unacceptable impact on the heritage significance of the heritage conservation area.

Impact on views

62. The Council’s contention is that the development application should be refused on the basis that it results in unacceptable view loss from adjoining and nearby residential dwellings.

63. The WDCP provides specific controls with respect to views and view sharing. Part E2, Section 2.1.5, which concerns the Bondi Beachfront character area, contains the objectives to “minimise view loss from existing developments by proposed development” and to “promote the concept of view sharing as a means of ensuring equitable access to views”. Control (b) requires that “Proposed development should avoid impacting on existing views where possible.”

64. In addition, Part C2 concerns residential development and contains a specific section, Section 2.14, concerning views and view sharing. It states that “this Part should be read in conjunction with the NSW Land and Environment Court Planning Principle based on Tenacity Consulting v Warringah Council [2004] NSWLEC 140”, and then provides the following objectives and controls, insofar as they are relevant:

“Objectives

(a) To ensure that views are shared, providing equitable access to views from dwellings.

…

Controls

(a) New development should be designed to minimise view loss to adjoining and adjacent properties while still providing opportunities for views from the development itself (refer to Figures 23 and 24).

(b) Provide articulation, and minimise the bulk and scale of roof forms on the low side of streets allowing views to the landscape beyond.

…

(f) In some instances a detailed view loss analysis may be required by Council. Refer to the Waverley Development Application Guide for more information.

(g) Measures to be used to facilitate view sharing include buildings setbacks, gaps between buildings, floor heights, roof forms and use of open materials and balustrades on balconies and decks.”

65. The Council’s position is that the proposed development is inconsistent with these objectives and controls, and with the planning principle in Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140, particularly in circumstances where the impacts arise from a development that breaches planning controls and a more skilful design could reduce the impacts on views from neighbouring properties. The Council points to the breach of the height development standard, the breach of the storey control, as well as the non-compliance with the maximum wall height of 12.5m and the rear and side setback controls.

66. Bondi Residence instead submits that much of the residents’ views are being preserved by the proposed development, and for those residents whose views will be impacted, it is an impact anticipated by the height development standard that applies to the site. In particular, Bondi Residence says that any impact arising from something that complies with the development standard would have a devastating impact on views for residents of Units 7 and 12 of 7 Francis Street, and Units 3 and 4 of 9 Francis Street.

67. The view analysis shows that, consistent with the evidence of Mr McDonald and Mr Dickson, for the worst affected properties at 7, 9 and 11 Francis Street:

• At 12/7 Francis Street, the proposed development obstructs the view from the living room of southern Bondi up to the south edge of the Bondi Pavilion, including substantial components of the existing expansive view of the water, beach, Bondi Beach Park and Campbell Parade south of Bondi Pavilion. Bondi pavilion remains visible, as does the beach to the north of the pavilion, and views to Ben Buckland headland and North Bondi land-water interface are retained.

• At 7/7 Francis Street, there is no photomontage to assess the impact, but it is generally understood that the proposed development will obstruct all beach and water views including the land-water interface at the northern end of the beach.

• For 3/9 Francis Street, the proposed development completely obstructs the view from the balcony of all of Ben Buckland headland and North Bondi, including the land-water interface. Only views to a central area of the beach remain, including a small area of land/water interface, as well as views to Bondi Beach Park and Campbell Parade south of Bondi Pavilion.

• For 4/9 Francis Street, the proposed development obstructs the view from the balcony of Ben Buckland headland and North Bondi, including the land-water interface and the mid to northern portion of Bondi Beach. A narrow view corridor to the tip of Ben Buckland headland and the ocean horizon is retained between the proposed building and the existing building to the south.

• At 4/11 Francis Street, the proposed development obstructs the view from the balcony of the easternmost portion of Ben Buckland headland and North Bondi, as well as of the ocean to the horizon to the north and east of the headland. Views to Bondi Beach, Bondi Beach Park and Campbell Parade remain unaffected.

68. Each of these are severe impacts as they remove entire aspects of valuable views to the beach, headland and/or land/water interface.

69. Bondi Residence’s position is that these properties will also be affected by a compliant building. It relies on the evidence of Mr Dickson and Mr Karavanas that the proposed development results in negligible view impacts beyond the impacts anticipated by a compliant building envelope. That comparison is demonstrated in the photomontages that have informed the view analysis, in Ex C.

70. The Council instead submits that the view impact results from non-compliances with controls in the WDCP concerning the building envelope. Specifically, the evidence of Mr McDonald is that the proposed development does not comply with the maximum number of storeys control, the maximum external wall height control, the side setback controls above 12.5m or the rear setback control. His evidence is that these areas of non-compliance contribute to the height and bulk of the building, particularly the non-compliant fifth storey, which causes the view loss described above.

The impact on views is unacceptable

71. I do not accept that the assessment of reasonableness of a view impact is confined to a comparison of a so-called “compliant envelope” with what is proposed. The controls in the WDCP are not merely building envelope controls, but extend to specific controls concerning the increase of setbacks to minimise view loss, as well as controls requiring the incorporation of design measures to facilitate view sharing. I consider that the impact on the views currently enjoyed from the worst affected properties identified above at [67] is unacceptable, for three reasons.

72. Firstly, much of the impact arises from the non-compliance with the control in the WDCP concerning the maximum number of storeys. The control is for a maximum of four storeys (Part E2, Section 2.2.2, control (b)(i)), with which the proposed development does not comply. Having regard to the photomontages that have informed the view impact analysis, it is clear from the wireframes that much of the built form that obstructs the views arises from the additional fifth-storey that is contrary to this four-storey control.

73. I do not accept the position advanced on behalf of Bondi Residence that the control concerning the setback of “attic levels or part additional floors” (Section 2.2.2 Control (c)(v)) anticipates that an additional storey above the four-storey control is generally acceptable in the Campbell Parade South character area. This control instead concerns setbacks of an upper level and does not authorise built form beyond the four-storey control in control (b)(i).

74. Secondly, I accept the evidence of Mr McDonald that the inadequate side setbacks contribute to this view loss. The built form controls in Part E2 Section 2.2.2 of the WDCP, taken together, require a building that is “built to the side boundaries for minimum 10m from the front street wall” (control (c)(ii)), up to a wall height of 12.5m (control (b)(ii)). Built form above the wall height of 12.5m would therefore be required to be setback from the side boundary. The side boundary setback controls are set out in Part C2, Section 2.3.2 of the WDCP. They require the built form above 12.5m to be setback between 1.5m and 2.5m. The side setbacks of the upper level of the proposed development are 1.5m, and therefore achieve numerical compliance. However, this control, at control (c) clearly specifies that “Council may require additional setbacks to ensure adequate solar access to adjacent buildings and privacy or to minimise view loss”. It is therefore clearly contemplated that numerical compliance is not sufficient, and additional setbacks ought to be utilised to minimise view loss. I accept the evidence of Mr McDonald that increasing the side boundary setbacks from that proposed would improve view sharing corridors. The proposed development has not done so.

75. Thirdly, contrary to control (g) of Section 2.14 of Part C2 of the WDCP, the proposed development does not incorporate measures to facilitate view sharing. These could include “buildings setbacks, gaps between buildings, floor heights, roof forms and use of open materials”.

76. I note that there is a dispute between the parties as to the extent of any non-compliance with the 12.5m wall height control in Section 2.2.2, Control (b)(ii). The extent of non-compliance depends on how the definition of “external wall height” is applied to the proposed development. I need not make a determination concerning the same. I have decided that the view impact is unacceptable in circumstances where the severe impacts on views from the most affected properties are caused by the breach of the storey control, the failure to provide adequate side setbacks at the upper level to minimise view loss, and the failure to use any other design measures to facilitate view sharing.

77. I also do not accept the submission made by Mr Galasso that the wall height control in the WDCP is inconsistent with the height development standard in the WLEP and should therefore have no effect, pursuant to s 3.43(5)(b). The submission is advanced on the basis that there is also a control for a flat roof (control (h)(iii) of Section 2.2.2). However, the height development standard in the WLEP is a maximum height of building measured from the ground level, whereas the wall height control (and the flat roof control) in WDCP concerns how the built form might be arranged within what is allowed by that maximum height, including by restricting the height of the walls of the building. Given that walls can be offset from one another and can ‘step’ in accordance with the built form or topography, this is distinct from a maximum height control. Therefore, the wall height control in the WDCP (even considered together with the flat roof control) does not impose a separate maximum overall building height that can be said to be inconsistent or incompatible with the building height development standard in the WLEP.

78. For the above reasons, the severe impacts on views from the most affected properties identified at [67] are unacceptable as they are caused by the breach of the storey control, the failure to provide adequate side setbacks at the upper level, and the failure to use any other design measures to facilitate view sharing and minimise view loss. This is contrary to the objective in Part E2 Section 2.1.5 to “minimise view loss from existing developments by proposed development”. In accordance with Tenacity at [29], where “an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable”.

Impact on the heritage significance and character of the area

79. As set out above, the existing building is in the Campbell Parade HCA. It is also adjacent to an item of local heritage significance in Sch 5 of the WLEP, which is the inter-war style residential flat building at 20-26 Campbell Parade, known as Remola Mansions. Remola Mansions is adjacent to Cenira Mansions, which is not a heritage item but the pair is described in the Heritage Impact Statement by Weir Phillips Heritage and Planning as a defining element in the HCA. The building on the site is considered a contributory building by the Council, which is not disputed by the applicant, although Mr Phillips opines that the alterations of the built form over time has meant that it has lost most of the elements that make it contributory.

80. The controls in the WDCP concerning the Campbell Parade South character area require development concerning heritage and contributory buildings to “maintain the existing character of the area including narrow frontages and vertical expression” (Part E2 Section 2.2.2 of the WDCP, control (d)(i)). Part E2 Section 2.1.3 of the WDCP concerns built form within the Bondi Beachfront Area, and requires that “where a building façade adjoins a heritage item or contributory building, it must have a façade that complements the form and proportion of the building”. In addition, Part E2 Section 2.1.6 concerns heritage conservation and Part E2 Section 2.1.7 concerns infill buildings.

81. The relevant controls in Section 2.1.6 of Part E2 of the WDCP are as follows:

“(b) Heritage items and contributory buildings are to be retained and to remain legible as individual buildings in any related development.

…

(e) Any works adjacent to or in the context of heritage items and contributory buildings must clearly demonstrate cohesion with the existing historic character of the streetscape and the form, alignment, detailing, articulation and materials of heritage items and contributory buildings defining the conservation area.”

82. These controls have the following objectives:

“(a) To protect and enhance heritage items, contributory buildings and the established character of the heritage urban conservation area.

…

(d) To ensure heritage items and contributory buildings are retained and remain legible as individual buildings in new developments.”

83. Section 2.1.7 of Part E2 of the WDCP contains the following objectives and controls:

“Objectives

(a) To encourage infill buildings sympathetic in style to heritage items and contributory buildings in the Bondi Beachfront Area.

(b) To discourage infill buildings from imitating characteristics of heritage items and contributory buildings.

Controls

(a) Infill buildings must not imitate decorative details or features of heritage item and contributory buildings.

(b) Fenestrations must have similar proportions to heritage items and contributory buildings within the Bondi Beachfront Area.

(c) Where a new building is located adjacent to heritage items or contributory buildings, its design must be sympathetic in scale, alignment, detailing and materials to these existing buildings.

(d) Infill buildings must build to the prevailing street wall height then setback a minimum of 3m to any upper floors.”

84. The Council contends that the development application should be refused on the basis that the loss of the existing building and the proposed replacement building will detract from the heritage significance and character of the area.

85. The Council argues that the building forms part of a cohesive group, which is lost by the replacement building, which lacks any alignment of floor planes or parapet and has an effect of layered floor plates with shallow projections. It relies on the evidence of Mr Brady, who opines that the existing building achieves cohesion with the buildings at 20-34 Campbell Parade (Remola Mansions and the three buildings to the north) through “close if not identical alignment of window and verandah head and sill lines, depth of inter floor spandrels, proportions of solid to voids, and the dominant shadow line of the extended eave providing a line close to that of the entablature of Remola Mansions” (Ex 5, p.12). Mr Brady’s evidence is that the cohesion of the proposed development to the adjacent Remola Mansions is poor, due to the absence of “traditional ‘linking’ elements apparent in the subject group” (Ex 5, p.12). His evidence is that the floor levels, sill and head heights to openings, and proportions of openings of the subject group, are unrelated to those of the proposed development. Mr Brady also opines that the additional floor height is not concealed by the setback, and will “clearly detract from any cohesion with the adjacent listed building” (Ex 5, p.13).

86. Bondi Residence submits that the degree of alteration that has occurred to the existing building is such that there is no basis for retention, and that the proposed development is compatible with and enhances the heritage conservation area. It relies on the evidence of Mr Phillips, who opines that the existing building does not form part of a cohesive group and has lost all identity with the adjacent heritage item. His evidence is that the proposal is “a sensitive, articulated infill building that does form part of a cohesive group” by presenting as a modern development that provides references to the original buildings in the street (Ex 5, p 11). Mr Phillips’ evidence is that the floor levels of the proposed building relate to the topography of the site, and there is no requirement for them to match adjacent heritage items. He considers that the proposal sits comfortably between the four-storey building to the south, and the heritage item to the north, and displays proportions and a level of detail that “compliments the item but also lets the item have prominence” (Ex 5, p.13). Bondi Residence submits that the heritage conservation area is a large area with which the proposed development is compatible, and relies on Mr Phillips’ opinion that there is no “articulation characteristic of the conservation area” given the array of building types in the HCA in various states of alteration.

There is an unacceptable impact on the heritage streetscape character

87. I consider that the proposed development has an unacceptable impact on the heritage streetscape character, as it fails to utilise linking elements to achieve cohesion with the group of buildings with which the existing building has cohesion, and therefore detracts from the heritage significance of the adjacent heritage item and from the heritage significance of the Campbell Parade HCA. I reach this conclusion for the following reasons.

88. Firstly, I accept the evidence of Mr Brady that the existing building forms part of a cohesive group with the adjacent heritage item known as Remola Mansions and its pair Cenira Mansions, together with their grouping with the building to the north. I accept his evidence that this grouping, which he clarified in oral evidence to be from 14-30 Campbell Parade, is a cohesive assembly that is facilitated by “closely aligned sill and head levels to openings, expressed cornice and stinger lines, parapets and ridgelines” (Ex 5, p.12). This is readily apparent when having regard to the buildings from 14 to 30 Campbell Parade, in relation to which I accept Mr Brady’s evidence that they have close alignment of window and verandah head and sill lines, similar proportions of solid to voids, and an alignment of the eaves. The latter allows the existing building to have a dominant shadow line of the eave that aligns closely with the entablature of Remola Mansions. This is demonstrated by the image of the current building in Figure 2.

89. Secondly, the proposed development is absent elements to achieve cohesion with the adjacent Remola Mansions heritage item or the group to the north. I accept the evidence of Mr Brady that the proposed development has unrelated floor levels, sill and head heights to openings, and proportions of solid to openings, to those of the adjacent Remola Mansions, its pair Cenira Mansions, and the next adjacent building to the north. I accept his evidence that the additional floor levels will be readily seen and will further detract from the adjacent heritage item. This is demonstrated by the image in Figure 3, where the elevation demonstrates the unrelated floor levels, inconsistent sill and head heights to openings, inconsistent proportions of the built form and unrelated parapets, between the proposed development and the adjacent heritage item. As such, the cohesion that currently exists between the existing building and the adjacent heritage item, its pair Cenira Mansions, and the next adjacent building to the north, is not achieved by the proposed building.

90. Thirdly, a comfortable fit with 10-12 Campbell Parade is not considered appropriate in the context of the heritage item adjacent to the site. I accept the evidence of Mr Brady that the building at 10-12 Campbell Parade is a poor and detracting element of the streetscape and conservation area, and does not form part of the cohesive group from 14-30 Campbell Parade. This is due to its proportion of solids to voids, its merely nominal alignment of window openings, and the absence of any alignment with the eaves of adjacent buildings.

91. For those reasons, the proposed development results in a loss of cohesion in the streetscape between the site and the cohesive group, including with the adjacent heritage item. It is not sufficient for Bondi Residence to rely on the varied architectural style across the broader Campbell Parade HCA in order to justify this loss of cohesion. The controls in Part E2 of the WDCP specifically require that “where a building façade adjoins a heritage item or contributory building, it must have a façade that complements the form and proportion of the building” (Section 2.1.3, control (b)) and that “where a new building is located adjacent to heritage items or contributory buildings, its design must be sympathetic in scale, alignment, detailing and materials to these existing buildings” (Section 2.1.7, control (c)). Neither of these controls are met, for the reasons expressed above. The façade of the proposed building does not complement the form and proportion of the heritage item, and the design is not sympathetic in scale or alignment, as it provides unrelated sill heights, opening heights, proportions of void to openings, parapet heights and eave heights.

90. For these same reasons, the objectives of these controls in Part E2 of the WDCP are not achieved. The proposed development does not protect and enhance the established character of the heritage conservation area, contrary to objective (a) of Section 2.1.6, and does not result in an infill building sympathetic in style to heritage items and contributory buildings, contrary to objective (a) of Section 2.1.7.

91. In summary, the proposed development demolishes an existing building that achieves cohesion with the adjacent heritage item and the cohesive group described above, and replaces it with a built form that lacks the same cohesion and fails to complement the form or proportion of the heritage item. The proposed development therefore unacceptably detracts from the heritage significance of the adjacent heritage item and from the heritage significance of the Campbell Parade HCA. This is another reason why I consider that the development application should be refused.

Outcome of the appeal

94. As set out above, none of the environmental planning grounds advanced in the written request are sufficient to justify the exceedance of the height development standard which arises from the fifth storey of the proposed development. This alone precludes the grant of development consent, pursuant to cl 4.6(4)(a) of the WLEP.

95. Further, the fifth storey and the absence of side setbacks to create view corridors at the upper level causes unacceptable impacts on the views currently enjoyed by residents of Francis Street.

96. In addition, I have found that the proposed development unacceptably detracts from the heritage significance of the adjacent heritage item and from the heritage significance of the HCA.

97. For those reasons, the development application should be refused.

98. The Court orders that:

1. The appeal is dismissed.

2. The development application DA 9/2023 for the demolition of the existing building and the construction of a new five-storey mixed use shop top housing development at 14-18 Campbell Parade, Bondi Beach, is determined by the refusal of consent.

3. The exhibits are returned.

J Gray

Commissioner of the Court

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Decision last updated: 04 June 2024