Bureau SRH Pty Ltd v Woollahra Municipal Council

[2024] NSWLEC 1677

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Bureau SRH Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1677

Hearing dates:

2-3 October 2024

Date of orders:

24 October 2024

Decision date:

24 October 2024

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No 143/2023 for the demolition of existing buildings and construction of a new commercial building and lot consolidation, at 394, 396-398 and 400 New South Head Road, Double Bay, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

(3) The exhibits, other than Exhibits 1, A, E and F, are returned.

Catchwords:

DEVELOPMENT APPLICATION – commercial premises – exceedance of the height of buildings and floor space ratio development standards – the height, bulk and form of the development is consistent with the desired future character of the Double Bay Centre

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, ss 34, 39

Environmental Planning and Assessment Regulation 2021, s 37

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

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

Woollahra Local Environmental Plan 2014 cl 4.6, 4.3, 4.4, 5.21, 6.37

Cases Cited:

Cumming v Cumberland Council (No 2) [2021] NSWLEC 117

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

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

Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472

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

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

Texts Cited:

The Woollahra Development Control Plan 2015

The Double Bay Planning and Urban Design Strategy

Category:

Principal judgment

Parties:

Bureau SRH Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
A Galasso SC / H Grace (Applicant)
L Mulligan (Solicitor) (Respondent)

Solicitors:
Garland Hawthorn Brahe Solicitors (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/278687

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No 143/2023 for the demolition of existing buildings and construction of a five-storey commercial premises over basement parking and lot consolidation (the proposal), at 394, 396-398 and 400 New South Head Road, Double Bay (the site), by Woollahra Municipal Council (the Council).

2. The appeal was subject to conciliation on 15 March 2024, in accordance with the provisions of s 34 of the Land and Environment Court Act1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 2 April 2024, pursuant to s 34(4) of the LEC Act.

The application is amended

3. The applicant sought to amend the application by Notice of Motion heard on 2 October 2024. The Council did not object to the granting of the motion. The applicant was granted leave under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to amend the development application in accordance with the documents annexed to the affidavit of Stephen Edward Martin sworn 26 September 2024 and filed with the Court on 26 September 2024 (see condition A.3 of the conditions of consent at Annexure A).

Issues

4. The Council’s contentions can be summarised as:

• The proposal, at a maximum height of 19m to the top of the air conditioning units, exceeds the height of buildings development standard for the site of 14.7m and the requirements of cl 4.6 of the Woollahra Local Environmental Plan 2014 (LEP 2014) have not been met.

• The proposal, with a floor space ratio (FSR) of 3.76:1, exceeds the FSR development standard for the site of 2.5:1 and the requirements of cl 4.6 of LEP 2014 have not been met.

• The height, bulk and form of the proposal is not compatible with the desired future character of the Double Bay Centre.

• The proposal does not provide sufficient setbacks.

• The proposal fails to contribute to the streetscape character of New South Head Road and Knox Lane and will not improve the pedestrian environment.

The site and its context

5. The site is on the northern side of New South Head Road, between Knox Street and Cross Street, within the Double Bay Centre. The site has a frontage to the rear lane, Knox Lane.

6. The site has an area of 531.5m², with a frontage of approximately 20.5m to New South Head Road. The site is generally flat.

7. The Double Bay Centre is a mix of building forms, heights, densities and architectural styles and eras.

The proposal

8. The proposal consists of the following:

• Basement – carparking and service areas accessed via a car lift from Knox Lane;

• Ground Floor – three retail spaces and a through-site pedestrian link between New South Head Road and Knox Lane;

• Levels 1 to 4 – office floor space.

9. The facades to New South Head Road and Knox Lane are four storeys in height, face brickwork with arched openings. The uppermost level, Level 4, has a setback of 6.203m from the New South Head Road façade, and 3.5m from the Knox Lane façade.

Planning framework

10. The site is zoned E1 Local Centre under LEP 2014 and the proposal for commercial premises is a nominate use permissible with consent. The objectives of the E1 zone, to which regard must be had, are:

• 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 provide for development of a scale and type that is compatible with the amenity of the surrounding residential area.

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

• To encourage development that is compatible with the local centre’s position in the centres hierarchy.

• To ensure development provides diverse and active ground floor uses to contribute to vibrant and functional streets and public spaces.

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

• To encourage the retention and planting of trees and other vegetation as part of development to minimise the urban heat island effect and to improve microclimates.

11. The height of buildings development standard for the site is 14.7m and the relevant objectives of the standard, at cl 4.3(1) of LEP 2014, are:

…

(a) to establish building heights that are consistent with the desired future character of the neighbourhood,

(c) to minimise the loss of solar access to existing buildings and open space,

(d) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion,

…

Extract of the Height of Buildings Map Sheet HOB_003 of LEP 2014

12. The FSR development standard for the site is 2.5:1 and the objective of the standard, at cl 4.4(1)(b) of LEP 2014, is:

…

(b) for buildings in Zone E1 Local Centre and Zone MU1 Mixed Use—to ensure that buildings are compatible with the desired future character of the area in terms of bulk and scale.

Extract of the FSR Map Sheet FSR_003 of LEP 2014

13. The flood planning clause under LEP 2014, at cl 5.21, requires the consent authority to be satisfied of the matters under subcl (2) and consider the matters under subcl (3). The site is mapped as being within the flood planning area. On the basis of the Council’s submission and the requirements of condition C.21, I am satisfied that the proposed flood barriers meet the objectives of the flood planning clause and that the relevant matters under subcl (2) are met by the proposal.

14. An Acid Sulphate Soils Management Plan, pursuant to cl 6.1(3) of LEP 2014, forms part of the application and is imposed on the consent under condition E.12.

15. On the basis of the Council’s submission, the Contaminated Land – Primary Site Investigation Report and requirements of the Conceptual Remedial Action Plan (Stage 3), I am satisfied that the proposal is suitable for the site, pursuant to s 4.6 of the State Environmental Planning Proposal (Resilience and Hazards) 2021.

16. Concurrence from Transport NSW has been obtained and the conditions are imposed at condition A.7.

17. Condition A.8 requires a de-watering management plan and groundwater take assessment to be submitted to Sydney Water to obtain a Dewatering Approval prior to excavation works commencing onsite.

The Woollahra Development Control Plan 2015 Chapter D5 Double Bay Centre

18. Chapter D5 of Woollahra Development Control Plan 2015 (DCP 2015) applies to the site at D5.1.1.

19. The relevant objectives of Chapter D5 are:

“…

O2 To develop the particular qualities of different parts of the Double Bay Centre.

…

O5 To enhance the way development contributes to a sense of place.

O6 To ensure a high standard of architectural and landscape design in any new developments within the Double Bay Centre.

…

O8 To ensure that new development is compatible with the existing built form, and streetscape and village character.

O9 To encourage view sharing and individual privacy.

…”

20. The desired future character (DFC) for New South Head Road, at D5.4.3 of DCP 2015, is to accentuate the curved street geometry of the road with four and five storey buildings. The DFC statement includes the following section (the site is on the northern side of New South Head Road):

21. The DFC for Knox Lane includes the following section (the site is on the southern side of Knox Lane):

22. Chapter D5 states, at D5.5.1 Urban form methodology, the building envelopes for every site in the Double Bay Centre generally establish four storey heights along streets, and two storey heights along lanes. The built form envelopes (at D5.5.3 and 4) show four storeys to New South Head Road with a 3.5m setback on the uppermost level and 2 storeys to Knox Lane. A central portion of the site is 4 storeys, of which 50% of the area per floor may be built upon.

The Double Bay Planning and Urban Design Strategy

23. The Double Bay Planning and Urban Design Strategy (the Strategy) (Ex 2, tab 23) was endorsed by the Council on 27 November 2023. The Council’s endorsement included that the planning proposal, based on the Strategy, was to reduce the proposed height of the review sites on the northern side of New South Head Road to 5 storeys, 19m, with a 3.5m setback above the street wall to New South Head Road, and a FSR of 3.5:1 (Ex 2, tab 24, folio 605).

24. The Strategy states that it (p 4):

“provides a comprehensive and detailed review of the existing planning controls and establishes a clear and coordinated approach to future development within the Double Bay Centre… The recommendations in the Strategy will inform future amendments to [LEP 2014 and DCP 2015]… This document outlines our approach to master planning of the Centre, including reviewing Council strategies and plans, analysis of existing built form and recent approvals…”

25. The Strategy, at 2.2, identifies recent development applications (approvals) and planning proposals, including the exceedances of the height of buildings and FSR development standards. The site is included as a ‘review site’ in the Strategy (Figure 13). Knox Lane at the rear of the site is identified as “enhance the laneway activation” (Figure 13). The draft Strategy was exhibited in 2022 (Section 3.2). The Strategy identifies the following key precincts in Double Bay (Figure 14) and the site is part of the New South Head Road precinct:

26. The site is identified, at Figure 16, as being a maximum of five storeys, as follows, with a four storey street wall to New South Head Road and a two storey street wall to Knox Lane (Figure 20):

27. The proposed FSR for the site under the Strategy is 3.5:1 (Figure 21). The setback above the street wall height on both facades is 6m (Figure 26). The Council’s resolution (Ex 2, tab 24) reduced the setback above the street wall height to 3.5m.

Expert evidence

28. The applicant relied on the expert evidence of George Karavanas (planning) and Rohan Dickson (urban design). The Council relied on the expert evidence of Wilson Perdigao (planning) and Stephen McMahon (urban design). The experts prepared a joint report, Ex 3, and gave concurrent oral evidence.

29. I accept the experts’ agreement that the issues raised in previous iterations of the proposal regarding solar access to existing building and the public domain have been resolved.

The proposal is consistent with the desired future character of the Double Bay Centre

30. The proposal contravenes both the height and FSR development standards under LEP 2014. The desired future character of the neighbourhood or area can be evaluated by reference to matters other than development standards for permitted development (Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 at [59]-[63]).

31. There are 21 approvals within the Double Bay Centre since 2014 which exceed the applicable building envelope development standards under LEP 2014, many of which are under construction or have been constructed (Figure 11 of the Strategy and Ex 3 p 15) and these developments now contribute to the existing and emerging character of Double Bay Centre. The Council cited two approvals which are consistent with the applicable height of buildings development standard, at 3 Knox Street and 384 New South Head Road (Ex 5) and I accept the Council’s submission that these two approvals, when and if realised, will also contribute to the existing character of the Double Bay Centre.

32. The extant and emerging character in the Double Bay Centre from the recent construction of approved development has overtaken, to a significant degree, the building envelopes that may have been expected within the Double Bay Centre derived from the building envelope development standards under LEP 2014 when it commenced. This is because much of the development under LEP 2014 is two storeys higher than the height of buildings development standard for those sites. The height of buildings development standard under LEP 2014 has broadly informed the height of the street wall of recent development, for example on the south-western side of Cross Street, and the uppermost two storeys have then been setback behind the street wall. That the building envelope development standards under LEP 2014 have not singularly informed the emerging character of the Double Bay Centre is clearly implied in the Executive Summary of the Strategy, and the purpose of the Strategy is therefore to recalibrate those standards and provide certainty for future development.

33. The Strategy explicitly states it is intended to inform future amendments to LEP 2014 and DCP 2015. For this reason, the Strategy and its role in planning decisions within the Double Bay Centre at this time cannot simply be dismissed or downplayed under the established legal principles for dealing with policy documents (Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 at [92]) because the Strategy has been prepared in the context of the virtual abandonment of the building envelope development standards under LEP 2014 and the controls addressing height for the Double Bay Centre under DCP 2015. The compatibility of the policy with the objectives and provisions of LEP 2014 and DCP 2015 is, therefore, not particularly relevant, as the Strategy was prepared with the express purpose of rewriting those standards and controls to account for the extant character resulting from the increased building envelopes above those envisaged by LEP 2014.

34. I accept the applicant’s submission that the planning proposal resulting from the Strategy is not imminent, but that there is no evidence before me to suggest that the Strategy is not reasonably certain.

35. I have therefore carefully considered the planning objectives of the Strategy because the Strategy recognises and entrenches the evolution that has occurred in Double Bay, along with the general principles that can be derived from the building envelope development standards under LEP 2014 and the objectives in Chapter D5 of DCP 2015.

36. Some of the broad principles for the height of buildings in the Double Bay Centre that can be drawn from the Height of Buildings Map (and to a lesser extent the FSR Map) and the objectives and controls for height in the Double Bay Centre in Chapter 5D of DCP 2015 are as follows:

• The northern side of New South Head Road is a consistent height of four storeys, with additional height permitted on featured corner sites.

• The southern side of New South Head Road is intended to be higher than the northern side.

• The site is within a block bounded by New South Head Road, Knox Street, Bay Street and Cross Street, with featured higher buildings fronting Bay Street.

• Similarly, the block to the south of the Cosmopolitan Centre, bounded by New South Head Road and Bay Street is the same height as the block containing the site, with additional height on the visually prominent corner site of New South Head Road and Bay Street, containing the striking Eeles Trelease development, which is the dramatic focus as one arrives in Double Bay from the east.

• The frontages of Knox Lane were intended to be two storeys high.

37. The Strategy divides the Double Bay Centre into key precincts (Figure 14) and the site is part of the New South Head Road precinct. The Strategy divides the precincts along Knox Lane, with the north-eastern side of Knox Street part of the Knox Street precinct and the south-western side of Cross Street part of the Cross Street precinct. The Strategy identifies the heights along the southern side of Cross Street as 6 storeys, and the undeveloped sites in the New South Head and Knox Street precincts as five storeys with a four storey street wall along both sides of New South Head Road (excluding the corner sites).

38. I accept the Council’s submission that the character of the Double Bay Centre is differentiated across precincts. I do not accept Mr McMahon’s view that the block on which the site is located, bounded by New South Head Road, Knox Street, Bay Street, Knox Lane and Cross Street is a distinct character area (Exh 3, Figure 4), because this is inconsistent with both the building envelopes and the relationships between building envelopes suggested by the development standards under LEP 2014 and DCP 2015, and the analysis of the Strategy. In my view, the identification of this block as a character area was merely convenient because it is a sliver within the Double Bay Centre that remains undeveloped. The site is predominately viewed as part of the northern street wall of New South Head Road, and is part of the curved street wall that continues around the corner in Knox Street because the block, in plan, is an obtuse angle creating a continuous elevation as it curves around the corner. From Knox Lane, the site is related to the development on both the south-western side of Cross Street and the north-eastern side of Knox Street.

39. I do not accept the applicant’s experts view that the public library building, on the southern side of New South Head Road opposite the site, is a cue for the character or the height of buildings in the New South Head Road precinct. The Double Bay Library is an appropriately celebrated civic building with a striking façade, and the commercial component of the library development adjoins the delightful heritage façade of the Sheaf Hotel. Similarly, the Eeles Trelease commercial development on the corner of New South Head Road and Knox Street, with the recent addition of two storeys (following a LEP amendment for additional height), does not justify the overall height or street wall height, or treatment of the street wall, along either side of New South Head Road, because this building is intentionally distinctive and unique, and on a featured and prominent corner site. The remainder of new development along New South Head Road, other than the identified corner sites, should be appropriately deferential and decorous in maintaining the street wall and allowing the iconic buildings within the Double Bay Centre to be the focus. It is not an appropriate urban design response to try to match the height or form of these featured buildings and their height is not a justification for an exceedance of the height of buildings development standard for development proposed within the street wall of New South Head Road.

37. I am satisfied that the proposal’s four storey street wall to New South Head Road, with its appropriately articulated and detailed arched openings within a masonry façade, is consistent with the desired future character of the Double Bay Centre and particularly the desired treatment of the street wall on the northern side of New South Head Road.

The proposal provides sufficient setbacks

41. The uppermost level of the proposal is sufficiently setback from the New South Head Road façade so as to be appropriately recessive. The height and setback of the uppermost level, and treatment of the New South Head Road façade, is consistent with the relevant objectives of Chapter D5 of DCP 2015; D5.4.3 to accentuate the curved street geometry of the road with four and five storey buildings; and the Strategy. The proposal will be a decorous and attractive addition to the northern side of New South Head Road.

42. The proposal has a four storey street wall on Knox Lane, with the westernmost bay wall removed (north elevation of DA200, Ex A) to form a curved indent for two storeys with a garden bed over, denoting and drawing one into the pedestrian entry to the through-site pedestrian link. The uppermost storey is setback from the façade. I am satisfied that the Knox Lane elevation and treatment is appropriate within the context of Knox Lane as it is broadly consistent with the pattern, form and treatment of the four storey projections at the rear of the Cross Street developments fronting the laneway on the opposite side of Knox Lane to the site (as shown on the elevation analysis of dwg DA203, Ex A). The proposal is consistent with the desired future character principles at D5.4.9 of DCP 2015 to retain and enhance the varied spatial definition of the lane, which now includes the treatment of the built form, including the four storey elevations to the laneway, at the rear of the Cross Street developments.

The proposal contributes the streetscape character of New South Head Road and Knox Lane and will improve the pedestrian environment.

43. The ground floor through-site pedestrian link between New South Head Road and Knox Lane will improve the pedestrian environment. It is readily identifiable and suitably proportioned. The proposal will contribute to the streetscape character of the Double Bay Centre as it is a well-designed, elegant, and decorous addition to the four-storey street wall of the northern side of New South Head Road.

Contravention of the height of buildings development standard

44. The application was lodged on 4 May 2023. Clause 4.6 of the standard instrument was amended on 1 November 2023. The historical version applies to the application (cl 8(1) of the Standard Instrument (Local Environmental Plans) Order 2006).

45. The proposal has a maximum height to the top of the air conditioning units of 19m and 18.4m to the top of the lift overrun. The proposal is one storey higher than the standard (Ex C, Figure 1). The height of buildings development standard for the site is 14.7m.

46. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard (Ex C).

47. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] “Initial Action”). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a “jurisdictional fact of a special kind”, because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action at [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant’s written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposed development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows:

(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 Secretary has been obtained.

48. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2014 (Initial Action at [29]).

The applicant’s written request to contravene the height of buildings development standard

49. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant’s written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows:

…

(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

50. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant’s written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).

51. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (“Wehbe”) and repeated in Initial Action at [17]-[21]:

1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

3. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

4. the development standard has been abandoned by the council; and

5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

52. The five ways to demonstrate that compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).

53. The applicant’s written request justifies the contravention of the height of buildings development standard on the basis that the objectives of the development standard are achieved, notwithstanding non-compliance with the standard, as follows:

• The height of the proposal is not inconsistent with the surrounding built form of the Double Bay Centre. There are a high number of recent development consents in breach of the height of buildings development standards within the Double Bay Centre, some exceeding the standard by up to 50% with the same 14.7m standard as the site, which contribute to the desired future character of the neighbourhood.

• The site is within a precinct defined as both sides of New South Head Road within the Double Bay Centre and the block bounded by Knox Street and Cross Street. Within this defined precinct, there are 13 recent development consents which breach the height of buildings development standards and are 5-6 storeys. The Eeles Trelease building on the western corner of New South Head Road and Knox Street is 23.2m high and was the subject of a planning proposal to increase the height of buildings development standard on that site. This development represents and contributes to the desired future character of the Double Bay Centre.

54. I accept the reasoning in the applicant’s written request that the proposal is consistent with the desired future character of the Double Bay Centre.

Environmental Planning Grounds

55. The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council(No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

56. The applicant’s written request identifies the following environmental planning grounds to justify contravening the height of buildings development standard:

• The orderly and economic use and development of land: the social benefits of providing additional commercial space within an area that is experiencing notable residential and commercial growth should be given weight in the consideration of the variation request, as the additional height facilitates further commercial space than is currently available on the site.

• Consistency with the context: the building envelope presents a built form that is consistent with the context and with the desired future character of the Double Bay Centre.

57. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3).

58. I do not accept that the addition of commercial floor space, as a result of the exceedance of the height of buildings development standard, is a reasonable or sufficient environmental planning ground to justify the exceedance of the development standard. It is a generic argument that could be applied to any commercial development, and it is not specific to the circumstances of the site. If a council wants to augment the amount of commercial floor area in a local centre, it will increase its building envelope development standards and other relevant provisions accordingly in response to appropriate strategic planning studies.

59. I am satisfied that justifying the aspect of the development that contravenes the height of buildings development standard as establishing a building envelope that is consistent with the built context and the desired future character of the Double Bay Centre is properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23] and is sufficient to justify the exceedance.

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

60. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]).

61. I am satisfied that the proposal is consistent with the zone objectives and the objectives for the height of buildings development standard for the reasons given in the judgment.

Contravention of the FSR development standard

62. The proposal has a FSR of 3.62:1. The FSR development standard for the site is 2.5:1.

63. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard (Ex D).

The applicant’s written request to contravene the height of buildings development standard

64. The applicant’s written request justifies the contravention of the FSR development standard on the basis that the objectives of the development standard are achieved, notwithstanding non-compliance with the standard, as follows:

• The building envelope of the proposal is not inconsistent with the surrounding built form of the Double Bay Centre. There are a high number of recent development consents in breach of the FSR development standards within the Double Bay Centre.

• The site is within a precinct defined as both sides of New South Head Road within the Double Bay Centre and the block bounded by Knox Street and Cross Street. Within this defined precinct, there are 13 recent development consents which breach the FSR development standards.

65. I accept the reasoning in the applicant’s written request that the proposal is consistent with the desired future character of the Double Bay Centre.

Environmental Planning Grounds

66. The applicant’s written request identifies the same environmental planning grounds to justify contravening FSR development standard as the height of buildings development standard. I am satisfied that justifying the aspect of the development that contravenes the FSR development standard as establishing a building envelope that is consistent with the context and the desired future character of the Double Bay Centre is properly described as an environmental planning ground and is sufficient to justify the exceedance.

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

67. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]).

68. I am satisfied that the proposal is consistent with the zone objectives and the objective for the FSR development standard, for the reasons given in the judgment.

Orders

69. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No 143/2023 for the demolition of existing buildings and construction of a new commercial building and lot consolidation, at 394, 396-398 and 400 New South Head Road, Double Bay, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

3. The exhibits, other than Exhibits 1, A, E and F, are returned.

Susan O’Neill

Commissioner of the Court

Annexure A

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Amendments

24 October 2024 - Annexure A attached.

Decision last updated: 24 October 2024