Capital Bluestone (BJRSL) Pty Ltd v Waverley Council

[2019] NSWLEC 1577

Land and Environment Court

New South Wales

Medium Neutral Citation:	Capital Bluestone (BJRSL) Pty Ltd v Waverley Council [2019] NSWLEC 1577
Hearing dates:	Conciliation conference on 20 November 2019
Date of orders:	27 November 2019
Decision date:	27 November 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	See orders at [13]
Catchwords:	DEVELOPMENT APPEAL – residential apartment development – apartment design guide – SEPP 65 – a mixed use development – heritage conservation – conciliation conference – agreement between the parties – orders
Legislation Cited:	Architects Act 2003 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court 1979 State Environmental Planning Policy No 55 Remediation of Land State Environmental Planning Policy No 64 Advertising and Signage State Environmental Planning Policy No 65 Design Quality of Residential Apartment Development Waverley Local Environmental Plan 2013
Texts Cited:	Apartment Design Guide Waverley Development Control Plan 2012
Category:	Principal judgment
Parties:	Capital Bluestone (BJRSL) Pty Ltd (Applicant) Waverley Council (Respondent)
Representation:	Counsel: I Hemmings SC (Applicant) M Staunton (Respondent)   Solicitors: Mills Oakley (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	18/390378
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) relating to the refusal of Development Application No. DA-533/2017/1 which seeks consent for the partial demolition of buildings and the construction of a 10-storey mixed use development containing a club premises, 80 residential apartments, basement parking with associated excavation and landscaping works at 84 Ebley Street, 1-9 Gray Street (also known as 28-34 Bronte Road), 36 Bronte Road, 38 Bronte Road and 40-42 Bronte Road, Bondi Junction.

2. The site currently comprises six properties containing a mix of two-storey commercial/retail buildings to Bronte Road and a three-storey property that contains the current premises of the RSL with a frontage to Gray Street and Ebley Street. The amalgamated site has a total area of 2,180m², being legally described as comprising Lot 1 in DP621398, Lot A in DP161158, Lots 1-3 in DP226425 and Lot 1 in DP735713.

3. On 25 October 2019, the Applicant was granted leave to amend the details of the application following the actual refusal by the Respondent of DA-533/2017 on 19 July 2018, and to rely on amended plans and documents which reduced the number of apartments to 78, and provided additional information including a view loss analysis and urban design study prepared in support of amended plans.

4. The matter was initially listed before me for hearing on 19-20 November 2019. Prior to the hearing, I attended a view of the site at which two public submissions were received prior to the hearing. The Court was invited by one resident of an apartment building close by to view the site from the apartment, in the company of the parties and their experts. The resident’s primary concern relates to the potential impact on view, access to daylight, impact on traffic in the local area which is said to be already congested, and the potential for the development to create an undesirable precedent.

5. At the commencement of the hearing on 19 November 2019, the parties advised the Court that the parties had reached agreement on a number of matters in contention, and sought an adjournment in order to discuss remaining issues in the hope of reaching an agreement on all matters. I granted an adjournment and, upon recommencement of the hearing, the parties advised me that agreement had been reached.

6. On the application of the parties, the hearing was further adjourned and the matter was reallocated to me under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) for a conciliation conference between the parties, which was held on 20 November 2019. I presided over the conciliation conference.

7. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 20 November 2019.

8. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

9. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. There are jurisdictional prerequisites contained in the relevant provisions of the following:

• State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55)

• State Environmental Planning Policy No 64 – Advertising and Signage (SEPP 64)

• State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65)

• Waverley Local Environmental Plan 2012

10. The parties explained to me during the conference as to how the jurisdictional requirements have been satisfied in order to allow the Court to make orders that give effect to the parties’ agreement. I am satisfied that each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons:

1. The land to which the development application relates is within the B4 zone – Mixed Use Zone under the provisions of the Waverley Local Environmental Plan 2012 (WLEP). Development for the purposes of Mixed Use building is permitted with consent, and I am satisfied that the proposal is consistent with the objectives of the zone which are in the following terms:

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To encourage commercial uses within existing heritage buildings and within other existing buildings surrounding the land zoned B3 Commercial Core.

2. On the basis of the Preliminary Site Investigation undertaken by Aargus dated 23 November 2017 and the Detailed Site Investigation undertaken by Aargus dated 9 August 2019, I am satisfied that the land will be remediated before the land is used for the purpose for which the development is proposed to be carried out, pursuant to Clause 7 (1) of SEPP 55, and as provided for in the conditions of consent at Annexure ‘A’.

3. Where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50(1AB), which include attestations in relation to cl 28(2)(b) and (c) of the SEPP 65. I am satisfied that the statement completed by the architect Lisa-Maree Carrigan, dated 20 November 2019 is in a complying form.

4. Clause 30(2) of SEPP 65 requires the consent authority, or the Court on appeal, to be satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles, and the objectives specified in the Apartment Design Guide (ADG) for the relevant design criteria. On the basis of independent urban design advice engaged by Council, and the architect’s attestation demonstrating how the objectives of Parts 3 and 4 of the ADG have been achieved, I am satisfied that adequate regard has been given to the ADG.

5. For the reasons set out above, I am also satisfied that the proposed development achieves design excellence having regard to those matters set out at cl 6.9(4) of the WLEP.

6. I am satisfied that the proposed signage associated with the development is consistent with the assessment criteria set out in Schedule 1 of the SEPP 64.

7. As the proposed development affects a property that is listed in Schedule 5 of the WLEP as a local heritage item (I171), and is within the vicinity of other local heritage items, I must consider the effect of the proposed development on the heritage significance of the item, pursuant to cl 5.10(4) of the WLEP. I note that Council is satisfied, as am I, that the façade of the heritage item will be retained, consistent with the heritage significance of its listing.

8. Clause 4.3 of the WLEP provides for a maximum building height of 32m. The parties are agreed that the building exceeds the height control, and the Applicant relies on a written request prepared by Mr Stephen White and Mr Simon Wilkes dated 19 November 2019 pursuant to cl 4.6 of the WLEP to justify the contravention of the height control. I am satisfied that the written request adequately addresses the provisions of cl 4.6 of the WLEP for the following reasons:

• The exceedance varies, but is measured at a maximum of 3.72m or 11.6% at the topmost level of the portion of the building containing plant, including a cooling tower enclosure and the lift over run. No additional gross floor area arises from the exceedance.

• Compliance with the development standard is unreasonable or unnecessary as the objectives of the height control at cl 4.3 of the WLEP are achieved. These objectives are set out as follows:

(a)  to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties and public spaces and, if appropriate, the sharing of views,

(b)  to increase development capacity within the Bondi Junction Centre to accommodate future retail and commercial floor space growth,

(c) to accommodate taller buildings on land in Zone B3 Commercial Core of the Bondi Junction Centre and provide an appropriate transition in building heights surrounding that land,

(d)  to ensure that buildings are compatible with the height, bulk and scale of the desired future character of the locality and positively complement and contribute to the physical definition of the street network and public space.

• I accept the statement made in the written request to the effect that the shadow analysis demonstrates that a departure from the development envelope required by the Waverley Development Control Plan 2012 Amendment No 5 (WDCP) results in greater solar access to properties in the vicinity, and the impact of the exceedance in the building height control falls within the site itself.

• I also accept that the development is proposed on a site that acts as a transition between building height controls of 60m to the north of the site, and heights of between 9.5-15m to the south of the site.

• In arriving at an opinion of satisfaction, I also consider the detailed view loss analysis undertaken by Bonus + Associates dated 27 August 2019 demonstrates that the proposed development will preserve the environmental amenity and the sharing of views, and that the urban design study undertaken by Bonus + Associates dated 5 September 2019 demonstrates an appropriate transition in building heights.

• Furthermore, the written request also maintains that strict compliance with the standard is unreasonable or unnecessary because, while the control has not been abandoned, a regular pattern of approvals granted by the Council for development that exceeds the height control, is a relevant consideration.

• Next, I consider there to be sufficient environmental planning grounds to justify the contravention of the height control as the objectives of the height control and B4 zone are achieved through detailed shadow and view loss analysis to arrive at the building design and massing which generally complies with the objectives and controls contained in the ADG and WDCP, and is 25% below the maximum floor space ratio permitted by cl 4.4 of the WLEP

• I am satisfied that the proposed development is consistent with the objectives of the development standard, and the objectives of the zone, set out at [10(1)], and is in the public interest. In arriving at this state of satisfaction, I consider the removal of the existing driveway on Ebley Street and the manner in which the heritage item has been retained and incorporated into the development, reflected in conditions of consent, to positively complement and contribute to the physical definition of the street network and public space.

11. Having formed an opinion of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)).

12. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application.

13. The Court orders that:

1. The applicant is granted leave to rely on the following amended architectural plans prepared by Group GSA (as referred to in condition 1(a) of the conditions of consent contained at Annexure “A”):

DA 2001 Basement 3 Plan, Issue K, dated 19 November 2019;

DA 2002 Basement 2 Plan, Issue K, dated 19 November 2019;

DA 2003 Basement 1 Plan, Issue J, dated 19 November 2019;

DA 2014 Level 6-7 Plan, Issue E, dated 10 October 2019;

DA 3000 Elevation North – Gray Street, Issue J, dated 8 November 2019;

DA 3001 Elevation West – Bronte Road, Issue J, dated 8 November 2019;

DA 3002 Elevation South – Ebley Street, Issue J, dated 8 November 2019;

DA 3003 Elevation East, Issue J, dated 8 November 2019;

DA 3100 Building Sections, Issue H, dated 8 November 2019

2. The Applicant is granted leave to rely on the amended clause 4.6 written request, prepared by Urbis for contravention of the maximum height development standard imposed by clause 4.3 of the Waverley Local Environmental Plan 2012 dated 19 November 2019.

3. The Applicant’s written request under clause 4.6 of the Waverley Local Environmental Plan 2012, prepared by Urbis for contravention of the maximum height development standard imposed by clause 4.3 of the Waverley Local Environmental Plan 2012 dated 19 November 2019 is upheld.

4. The appeal is upheld.

5. Development Application no. DA533/2017 for partial demolition of existing structures, construction of a ten storey mixed use development containing a club premises, seventy-eight residential apartments, basement parking with associated excavation and landscaping works at 84 Ebley Street, 1-9 Gray Street (also known as 28-34 Bronte Road), 36 Bronte Road, 38 Bronte Road and 40-42 Bronte Road, Bondi Junction is approved subject to the conditions contained at Annexure “A”.

____________

Tim Horton

Commissioner

Annexure A (570 KB)

Architectural Plans (8.20 MB)

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Decision last updated: 28 November 2019