Carlisle Holdings Group Pty Ltd v Waverley Council

[2025] NSWLEC 1211

Land and Environment Court

New South Wales

Medium Neutral Citation:

Carlisle Holdings Group Pty Ltd v Waverley Council [2025] NSWLEC 1211

Hearing dates:

Conciliation conference on 3 March 2025

Date of orders:

08 April 2025

Decision date:

08 April 2025

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the development application, as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(2)   The appeal is upheld.

(3)   Development Application No. 55/2024 for the demolition of the existing residential flat building and the construction of a new residential flat building, at 31 Carlisle Street, Tamarama, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – amended application – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 29, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), ss 2.3, 2.6 Ch 2

State Environmental Planning Policy (Housing) 2021, ss 144, 145, 147, 148, Ch 4

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

Waverley Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 6.1, 6.2, 6.14, 6.15

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

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

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide (July 2015)

Waverley Development Control Plan 2012

Category:

Principal judgment

Parties:

Carlisle Holdings Group Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wiltshire Webb Staunton Beattie (Respondent)

File Number(s):

2024/141286

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 deemed refusal of Development Application No. 55/2024 for the demolition of the existing residential flat building and the construction of a new 5 storey residential flat building comprising 5 units and basement parking (the proposal), at 31 Carlisle Street, Tamarama (the site), by Waverley Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 3 March 2025. I presided over the conciliation conference. 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. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

3. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended application

4. The Court, exercising the functions of the Council as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

5. The Court’s leave for the applicant to amend the application was not opposed by the Council but the Council sought its costs in relation to the amendment of the application, pursuant to s 8.15(3) of the EPA Act, as agreed or assessed.

6. The amended application was filed with the Court on 16 April 2024 (Exh A on the Notice of Motion).

The site and its context

7. The site is on the northern side of Carlisle Street, with rear access to Dellview Lane. The site falls steeply from Dellview Lane to Carlisle Street.

8. The site is legally identified as Lot CP of SP8207.

9. The site has an area of 564.9m², with a frontage to Carlisle Street of 12.19m.

10. The site adjoins a public walkway along the western boundary.

Public submissions

11. Six resident objectors gave evidence onsite and the Court, in the company of the parties, viewed the site from three properties in Wonderland Ave, Tamarama. The concerns of the resident objectors can be summarised as:

• Loss of ocean and beach views as a result of the insufficient front setback of the proposal;

• Exceedance of the floor space ratio (FSR) development standard and as a consequence, the uncharacteristic bulk and scale of the proposal when compared to surrounding development;

• The FSR and height development standards should be applied to the proposal;

• The building envelope of the proposal is larger than the building envelope of the existing residential flat building;

• Visual and acoustic privacy impacts as a result of windows on the side elevations and balconies on the front elevation;

• The proposal reduces the number of units when compared to the existing residential flat building which is contrary to government policy;

• The loss of on-street car parking spaces;

• The inconvenience of the temporary closure of the public walkway adjacent to the site; and

• The potential for increased noise from the use of the public walkway as a result of the location and treatment of the western elevation of the proposal.

Expert evidence

12. The applicant relied on the expert evidence of Rohan Dickson (urban design), Lee Kosnetter (planning) and Chris Palmer (traffic engineering).

13. The Council relied on the expert evidence of Faraneh Jabalameli (urban design), Bridget McNamara (planning) and Cameron Pike (traffic engineering).

14. All the experts prepared a joint report and their agreed changes were incorporated into the amended application. Following the amendment of the application, the Council submitted that their contentions were satisfactorily addressed by the changes made to the proposal.

Jurisdictional pre-conditions to the grant of consent

State Environmental Planning Policy (Resilience and Hazards) 2021

15. I accept the Council’s assessment of the application that the site is suitable for the development, having been historically used for a residential purpose, and that the matters under s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 have been addressed.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

16. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) details provisions regarding the preservation and management of vegetation in non-rural areas.

17. The site is located within the Waverley Local Government Area, as identified in s 2.3(1)(a) and as such Chapter 2 of SEPP Biodiversity applies.

18. Pursuant to s 2.6(1) of the Biodiversity SEPP, a person must not clear vegetation in a non-rural area without the authority conferred by a permit granted by the Council. The application seeks consent for the removal of one native tree in the front yard area. An approval under s 2.6 is required for the removal of the tree on the site. An arboricultural impact assessment report has been prepared by Urban Arbor dated 11 December 2023 assessing the trees on and adjoining the site. The report provides an analysis of the trees assessed as part of the approved Development Application No. 484/2022 for the adjoining site at 2 Wonderland Avenue, Tamarama, due to their proximity. The arboricultural report endorses the removal of the tree (identified as Tree 2 in the arboricultural report) due to its location within the proposed works.

State Environmental Planning Policy (Housing) 2021

19. Chapter 4 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) applies to the proposal, pursuant to s 144(2)(a). I accept the Council’s submission that the requirement of s 29 of the EPA Regulation for a statement by a qualified designer has been provided and is acceptable. Pursuant to s 145(2), the Waverley Design Excellence Advisory Panel has considered the application and provided advice on the quality of the design, which has been considered by the parties.

20. Section 147(1) of Housing SEPP requires a consent authority to take into consideration specified matters. In accordance with s 147 of the Housing SEPP and the EPA Regulation:

• 147(1)(a) and s 29 of the EPA Regulations - the Applicant has provided an amended statement addressing the design quality of the development in accordance with the design quality principles;

• 147(1)(b) – the applicant has provided an amended statement addressing the consistency with the Apartment Design Guide (ADG); and

• 147(1)(c) – the application was referred to the Waverley Design Excellence Advisory Panel on 10 April 2024, of which the Panel’s advice has been taken into consideration in the amendment of the application.

21. Section 148 of the Housing SEPP identifies development standards that, if complied with, prevent the consent authority from requiring more onerous standards. The plans and updated Design Verification Report prepared by Architects Nicholas + Associates and page 18 of the Amended Statement of Environmental Effects prepared by LK Planning demonstrates that the design meets the recommended minimum standards for ss 148(2)(b) and 148(2)(c).

22. In relation to s148(2)(a) of the Housing SEPP, a minimum of 1 space per 5 units is required. However, no visitor space is proposed. The planning experts agreed that no visitor parking is acceptable because the capacity of the development has been reduced from 9 units to 5 units, almost halving the demand for visitors; and there is no additional demand for on-street car parking; and utilising the provision to refuse the application would be contrary to the Waverley Development Control Plan (DCP) preference for residential parking above visitor parking.

23. I am satisfied that adequate regard has been given to the design quality principles and the objectives specified in the ADG for the relevant design criteria, as required under Ch 4 of the Housing SEPP.

Waverley Local Environmental Plan 2012

24. The site is zoned R3 Medium Density Residential pursuant to Waverley Local Environmental Plan 2012 (LEP 2012) and the proposal is an innominate permissible use with consent. The objectives of the R3 zone, to which regard must be had, are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

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

• To increase or preserve residential dwelling density.

• To encourage the supply of housing, including affordable housing, that meets the needs of the population, particularly housing for older people and people with disability.

• To provide development that is compatible with the desired future character and amenity of the surrounding neighbourhood.

• To promote development that incorporates planning and design measures that reduce the urban heat island effect.

• To improve the urban tree canopy by providing high levels of deep soil planting and additional landscaping.

25. Clause 6.1 Acid Sulfate Soils of LEP 2012 applies to the proposal as the site is mapped as containing class 5 Acid Sulfate Soils (ASS). Development consent is required for works within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land. The site is located within 500m of adjacent class 1, 2, 3 or 4 mapped land, however, the proposal is unlikely to lower the watertable below 1m of the Australian Height Datum.

26. Clause 6.2 Earthworks of LEP 2012 applies to the proposal because excavation for the basement is proposed. Before granting consent, the consent authority must consider the matters listed under Clause 6.2(3) of LEP 2012. In satisfaction of these matters, the applicant has provided:

• Amended Stormwater Management Plans prepared by Stellen Civil Engineering dated 20 February 2025 that outline the capture, management and discharge of stormwater on the site. The stormwater plans demonstrate that the development will not result in the disruption of or have a detrimental impact on the existing drainage patterns or soil stability on the site.

• Amended Geotechnical Report and Geotechnical Support Letter prepared by EI Australia dated 25 February 2025 identify the scope of excavation works proposed and assesses the potential impacts of same. Specifically, the Geotechnical Support Letter addresses each of the requirements of cl 6.2 and finds:

• Soil stability during excavations will be ensured by properly designed shoring or retention systems;

• Soils and rock will be removed for construction of the level 0 & level 2;

• The fill material found is likely suitable for reuse as site-won cohesive engineered fill;

• No notable odour or evidence of contamination was observed during investigation;

• The proposal should not affect the existing and likely amenity of adjoining properties;

• Any groundwater inflows should not have any adverse impact on any waterway, drinking water catchment or environmentally sensitive areas; and

• Appropriate shoring systems have been recommended to minimise impacts on neighbouring properties.

• Amended Architectural Plans prepared by Architects Nicholas + Associates, including demolition plans (Drawing LEC050 – LEC055) and construction management plans (Drawings LEC322-LEC325).

• The site is not identified as a heritage item or within an area of high archaeological heritage significance and therefore the likelihood of relics on the site is considered to be low. In any case, the discovery of relics on site will be treated with an unexpected finds protocol pursuant to standard conditions of consent.

27. Clause 6.14 Waste minimisation and recycling of LEP 2012 applies to the proposal pursuant to subcl (2)(b). The consent authority must be satisfied of the requirements at subclause (3)(a)-(c). Detailing how each of these are achieved, the applicant has prepared an Amended Operational Waste Management Plan prepared by Elephants Foot Consulting dated 18 February 2025. These recommendations have been implemented in the applicant’s architectural design and the waste rooms located at proposed Level 0 (Sheet LEC140).

28. Clause 6.15 Stormwater Management of LEP 2012 applies to the proposal pursuant to cl 6.15(2)(b) as the site is zoned R3. In deciding whether to grant development consent, the consent authority must be satisfied the development meets the requirements contained at subcl 6.15(3)(a)-(c). The development is consistent with the matters to be addressed as outlined below:

• The design incorporates landscaped areas to allow for water permeable surfaces on the land, per the Amended Landscape plans prepared by Wyer and Co dated 22 February 2025;

• The applicant’s proposed stormwater management plan implements an underground on-site detention tank, per Amended Stormwater Management Plans prepared by Stellen Civil Engineering dated 20 February 2025; and

• The stormwater management system includes an overflow pit to capture run off from the on-site detention tank and trapping and filtration system prior to discharge onto Carlisle Street, per Amended Stormwater Management Plans prepared by Stellen Civil Engineering dated 20 February 2025.

Contravention of the height of buildings development standard

29. The proposal, as amended, has a maximum height of 13.59 at the lift overrun and plant screen. The height of buildings development standard for the site is 9.5m, pursuant to cl 4.3 of LEP 2012. The objectives of the height of buildings development standard are:

(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.

30. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard, prepared by LK Planning and dated 14 February 2025.

31. Clause 4.6(3) 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(3). The consent authority, or the Court on appeal, must be satisfied that, (a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and (b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

32. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction.

33. 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 [17]-[21]:

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

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

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

• the development standard has been abandoned by the council;

• 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).

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

35. The applicant’s written request justifies the contravention of the height of buildings development standard on the bases that compliance is unreasonable or unnecessary, for the following reasons:

• there will be an improvement in overall amenity for the neighbouring properties in comparison to the existing building;

• the demolition and rebuilding process allows for a reduction in existing height;

• the overall scale of development is within the reasonable limits set by the LEP and DCP objectives;

• there are solar gains to existing neighbouring buildings and public areas; and

• the buildings height is consistent with the desired future character and demonstrates design excellence.

36. 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]). The applicant’s written request defends the exceedance of the height of buildings development standard as follows:

• the height variation is required to facilitate a replacement building on the site that, if not for variation, would not be economically viable;

• the proposed development is lower than the existing building and allows for improvements in amenity to the adjoining properties;

• variation of the height standard is exaggerated as a consequence of the topography of the site and the excavation works of the existing building, artificially exaggerating the measurable height;

• the building height is necessary to achieve design excellence and provide an appropriate correlation between the height and floor space ratio development standards;

• the area of height non-compliance is necessary to retain a building form at the rear of the site which facilitates casual surveillance of Dellview Lane and Wonderland Street;

• the proposal includes an offer to enter into a voluntary planning agreement with a contribution of $1,481,582 to Council for public benefit; and

• the proposal is consistent with the objectives of the development standard and the objectives of the zone.

37. I am satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). I am satisfied that justifying the aspect of the development that contravenes the development standard for the above reasons can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

Contravention of the FSR development standard

38. The proposal has a FSR of 1.74:1. The FSR development standard for the site is 0.6:1, pursuant to cl 4.4 of LEP 2012. The objectives of the FSR development standard are:

(a) to ensure sufficient floor space can be accommodated within the Bondi Junction Centre to meet foreseeable future needs,

(b) to provide an appropriate correlation between maximum building heights and density controls,

(c) to ensure that buildings are compatible with the bulk and scale of the desired future character of the locality,

(d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and the locality.

39. The applicant provided a written request seeking to justify the contravention of the FSR development standard, prepared by LK Planning and dated 14 February 2025.

40. The applicant’s written request justifies the contravention of the FSR development standard on the bases that compliance is unreasonable or unnecessary for the following reasons:

• the existing topography of the site has a fall of over 12 metres from Dellview to Carlisle Street, causing an exaggeration of the calculable height and corresponding appropriate built form;

• the existing density of the site is retained as currently there are 15 bedrooms and 16 is proposed;

• the breach in FSR will not be perceived as an additional or adverse bulk;

• the proposal is compatible with the bulk and scale of the desired future character as it removes a bulky 1970s flat building with poor streetscape presentation and replaces it with a contemporary form which exhibits design excellence;

• the new building results in an overall reduced bulk and scale with a recessive top element, resulting in improved transition of setbacks and consistency in neighbourhood character;

• the amenity of the locality is improved by the new building due to its reduced shadow, privacy, view and visual impacts and solar gains.

41. I am satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant’s written request defends the exceedance of the FSR development standard for the following reasons:

• the additional FSR is required to facilitate attainment of the desired future character objectives of the locality;

• the additional FSR is necessary to achieve design excellence on the site and to promote the orderly and economic use and development of the land;

• the additional FSR is attributable to an area where the existing building provides opportunities for infill development below the existing building, which improves the sites streetscape qualities to Carlisle Street;

• despite the variation sought, the proposal is lower and less bulky than the existing building due to appropriate redistribution of FSR;

• the proposal includes an offer to enter into a voluntary planning agreement with a contribution of $1,481,582 to Council for public benefit;

• strict compliance would undermine the viability of development on the site;

• the proposal is consistent with the objectives of the development standard and the zone objectives.

42. I am satisfied that justifying the aspect of the development that contravenes the development standard in this way can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

Conclusion

43. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 3 March 2025 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

44. The orders of the Court are:

1. The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the development application as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

2. The appeal is upheld.

3. Development Application No. 55/2024 for the demolition of the existing residential flat building and the construction of a new residential flat building, at 31 Carlisle Street, Tamarama, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

S O’Neill

Commissioner of the Court

Annexure A (690001, pdf)

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Decision last updated: 08 April 2025