Double Cross Holdings Pty Ltd v Woollahra Municipal Council

[2024] NSWLEC 1359

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Double Cross Holdings Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1359

Hearing dates:

Conciliation conference held 17 May, 29 May 2024

Date of orders:

28 June 2024

Decision date:

28 June 2024

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA467/2022 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application as agreed or assessed.

(3) The Applicant’s written request, pursuant to cl 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the WLEP is upheld.

(4) The Applicant’s written request, pursuant to cl 4.6 of the WLEP, seeking to vary the development standard for floor space ratio as set out at cl 4.4 of the WLEP, is upheld.

(5) The appeal is upheld.

(6) Consent is granted to Development Application DA467/2022 (as amended) for demolition of the existing commercial building and construction of a new six-storey shop top housing development with two levels of basement car parking and ancillary works, at 12 Cross Street, Double Bay, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – shop top housing – residential apartment building – cl 4.6 written request – height of buildings – floor space ratio – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 27, 29, 37, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, Div 2, s 6.1

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Housing) 2021, Ch 4, Sch 9, s 147

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

Woollahra Local Environmental Plan 2014, cll 2.3, 4.3, 4.4, 4.6, 5.10, 5.21, 6.1, 6.2

Texts Cited:

Apartment Design Guide, July 2015

Planning Circular PS 20-002, May 2020

Category:

Principal judgment

Parties:

Double Cross Holdings Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
S Simington (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/347064

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Double Cross Holdings Pty Ltd (the Applicant), against the refusal of Development Application DA467/2022 (the DA) by Woollahra Municipal Council (the Respondent). At the time of its lodgement on 31 October 2022, the DA sought consent for demolition of the existing commercial building and construction of a new six-storey shop top housing development with two levels of basement car parking, at 12 Cross Street, Double Bay (the site).

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 17 May and 29 May 2024. I presided over the conciliation conference.

3. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

4. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent, which included issues of building height exceedance, floor space ratio (FSR) exceedance, incompatibility with the desired future character and streetscape character, inadequate setbacks, poor pedestrian amenity, lack of visual and acoustic privacy and cross viewing impacts, inadequate vehicle access and parking, and the likelihood of contamination, amongst other contentions.

5. Agreed design amendments have been made to improve the DA’s relationship to the site, its context and the desired future character of Cross Street, redistributing building form and mass across the site to maintain the existing pedestrian through site link between Cross Street and Knox Lane. Changes have been made to improve internal residential amenity and mitigate against cross viewing. These agreed amendments also have the effect of reducing the scale, form and mass of the proposed building.

6. 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 amended DA.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

9. The DA was publicly notified from 13 November 2022 to 23 December 2022. A total of five submissions were received by the Respondent raising concerns with excessive height and building bulk, exceedance of FSR and height of building controls, traffic congestion, overshadowing, loss of village character and an inadequate interface to the neighbouring building at 10 Cross Street. The parties agree, and I am satisfied, that the amended DA and conditions of consent now satisfactorily address the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

10. The parties agree, and I am satisfied, that the Woollahra Local Environmental Plan 2014 (WLEP) is the relevant local environmental planning instrument. The site is zoned E1 Local Centre. The amended DA, comprising residential apartments and ground level retail uses - characterised as shop top housing development - is permissible with consent within the E1 zone.

11. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the WLEP, the amended DA is consistent with the E1 Local Centre zone objectives, which include:

• 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.

12. The parties agree, and I am satisfied, that all principal development standards of the WLEP have been met by the amended DA, with the exception of cl 4.3 - Height of buildings - and cl 4.4 - FSR.

13. In such an instance, cl 4.6(3) of the WLEP requires consideration of a written request from the Applicant demonstrating that compliance with this development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

14. Clause 4.6(4) of the WLEP requires the consent authority to be satisfied that the Applicant’s written request has adequately addressed the matters required 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 particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

15. Additionally, cl 4.6(4)(b) of the WLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 20-002 issued on 5 May 2020), the Court may assume the concurrence of the Planning Secretary in this matter.

16. As required by cl 4.6 of the WLEP, the Applicant has provided a written request seeking to vary the height of buildings development standard, prepared by GSA Planning and dated May 2024.

17. The amended DA proposes a maximum building height of 20.65m, exceeding the relevant height of building development standard of 14.7m by 5.95m and representing a variation of approximately 40.5%.

18. The parties agree, and I am satisfied, that the written request adequately justifies the proposed variance to the height of buildings development standard for the following reasons:

1. The amended DA is agreed to be an appropriate form and scale - at six storeys - that is compatible with the existing streetscape and desired future character of the Cross Street locality.

2. The proposed form presents a four-storey street wall to both Cross Street and Knox Lane, with the upper two levels set back from these street alignments, and striking a close built form relationship with two recent development consents at 10 and 14 Cross Street.

3. The area of exceedance to the maximum building height development standard generally arises as a result of amending the DA by agreement to redistribute building mass away from more sensitive neighbouring buildings, to achieve a strong contextual fit, and to maintain the existing through site link connecting Cross Street with Knox Lane.

4. The proposed height exceedance does not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties.

5. The objectives of the WLEP Zone E1 Local Centre land use zone include 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 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; and to provide for development of a scale and type that is compatible with the amenity of the surrounding residential area. I am satisfied the amended DA meets these objectives.

6. The objectives of cl 4.3 of the WLEP include to establish building heights that are consistent with the desired future character of the neighbourhood; to minimise the loss of solar access to existing buildings and open space; and to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion. I am satisfied the amended DA meets these objectives.

19. Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to the height of buildings development standard, and I find to uphold the written request.

20. Similarly, as required by cl 4.6 of the WLEP, the Applicant has provided a written request seeking to vary the FSR development standard, prepared by GSA Planning and dated May 2024.

21. The amended DA proposes a FSR of 3.02:1, exceeding the relevant FSR development standard of 2.5:1 by 174.57sqm of Gross Floor Area and representing a variation of approximately 20.9%.

22. The parties agree, and I am satisfied, that the written request adequately justifies the proposed variance to the height of buildings development standard for the following reasons:

1. The amended DA is agreed to be an appropriate form and scale - at six storeys - that is compatible with the existing streetscape and desired future character of the Cross Street locality.

2. The proposed form presents a four-storey street wall to both Cross Street and Knox Lane, with the upper two levels set back from these street alignments, and striking a close built form relationship with two recent development consents at 10 and 14 Cross Street.

3. The FSR exceedance arises as a result of amending the DA by agreement to redistribute building mass away from more sensitive neighbouring buildings, to achieve a strong contextual fit, and to maintain the existing through site link connecting Cross Street with Knox Lane.

4. The proposed FSR exceedance does not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties.

5. As noted earlier in this judgment, I am satisfied the amended DA meets the objectives of the WLEP Zone E1 Local Centre land use zone.

6. The objectives of cl 4.4 of the WLEP (for buildings within the E1 land use zone) are to ensure that buildings are compatible with the desired future character of the area in terms of bulk and scale. I am satisfied the amended DA meets this objective.

23. Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to the FSR development standard, and I find to uphold the written request.

24. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the WLEP - Heritage conservation - the existing building on the site is not a listed heritage item, nor is the site located within a heritage conservation area (HCA). Further, the site is not within close proximity to a listed heritage item or HCA. The parties agree, and I am satisfied, that the amended DA creates no detrimental impacts upon any heritage items or HCA.

25. The parties agree, and I am satisfied, that pursuant to cl 5.21 of the WLEP - Flood planning - the site is located within a Flood Planning Area on the Flood Planning Map.

26. The Applicant has provided a Flood Risk Management Assessment Report, prepared by Catchment Simulation Solutions and dated 11 August 2022. The report deals with the matters listed in cl 5.21(2) and (3) of the WLEP.

27. The parties agree, and I am satisfied, that the amended DA and agreed conditions of consent appropriately address the relevant matters set out in cl 5.21 of the WLEP.

28. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the WLEP - Acid sulfate soils - the site is mapped as being within a Class 2 acid sulfate soils area. The Applicant has provided an Acid Sulfate Soil Management Plan prepared by Alliance Geotechnical Pty Ltd and dated 8 April 2024, which deals with the acid sulfate soils. The plan satisfies cl 6.1(3) of the WLEP.

29. The parties agree, and I am satisfied, that the amended DA proposes excavation forming a matter for consideration pursuant to cl 6.2 of the WLEP - Earthworks. The Applicant has provided a Geotechnical Report prepared by Alliance Geotechnical Pty Ltd and dated 23 April 2024. I am satisfied this report addresses the matters set out at cl 6.2(3), which have been given appropriate consideration. Agreed conditions of consent reflecting the report recommendations are imposed.

30. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The Applicant has provided a Preliminary and Detailed Site Investigation Report, prepared by Alliance Geotechnical Pty Ltd and dated 19 April 2024, and a Remedial Action Plan, prepared by Alliance Geotechnical Pty Ltd and dated 22 April 2024. These reports confirms there are contaminants of potential concern and a number of areas of environmental concern at the site, which can be remediated to an acceptable state.

31. Agreed conditions of consent reflecting the recommendations of the Remediation Action Plan are imposed. Accordingly, I am satisfied the amended DA addresses those matters outlined in s 4.6 of SEPP Resilience and Hazards.

32. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument.

33. Chapter 2 of SEPP BC deals with clearing of vegetation in non-rural areas. The parties agree and I am satisfied, that the amended DA does not propose the removal of any trees and therefore Ch 2 of SEPP BC is not enlivened.

34. Chapter 6 of SEPP BC deals with water catchment. The parties agree, and I am satisfied, that the site is within the Sydney Harbour Catchment, but situated outside the Foreshores and Waterways Area pursuant to s 6.1 of SEPP BC. Similarly, an assessment of the proposal against the relevant principles set out at Div 2 of Ch 6 of SEPP BC has been undertaken and I am satisfied the amended DA appropriately addresses these matters.

35. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of Ch 4 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing).

36. Pursuant to the provisions of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the Applicant's architect, MHNDU (and its nominated architect Mr Brian Meyerson - NSW registered architect 4907) has prepared a Design Verification Statement dated 13 May 2024, fulfilling the requirements of s 29 of the EPA Reg and confirming that the amended DA achieves the Design principles set out in Sch 9 of SEPP Housing. This statement also sets out how the objectives of Parts 3 and 4 of the Apartment Design Guide have been achieved in the design of the amended DA. Accordingly, I am satisfied the amended DA meets the requirements of s 147 of SEPP Housing.

37. The parties agree, and I am satisfied, that the amended DA remains subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Consistent with SEPP BASIX and pursuant to s 27 of the EPA Reg, a BASIX certificate, No 1329625M_03, dated 25 May 2024, has been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

38. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

39. The Court notes that:

1. Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has lodged the amended DA with the Court on 17 May 2024.

Orders

40. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA467/2022 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application as agreed or assessed.

1. The Applicant’s written request, pursuant to cl 4.6 of the Woollahra Local Environmental Plan 2014 (WLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the WLEP, is upheld.

2. The Applicant’s written request, pursuant to cl 4.6 of the WLEP, seeking to vary the development standard for floor space ratio as set out at cl 4.4 of the WLEP, is upheld.

3. The appeal is upheld.

4. Consent is granted to Development Application DA467/2022 (as amended) for demolition of the existing commercial building and construction of a new six-storey shop top housing development with two levels of basement car parking and ancillary works, at 12 Cross Street, Double Bay, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

Annexure A

12 CROSS STREET DA Part 1

12 CROSS STREET DA Part 2

12 CROSS STREET DA Part 3

**********

Amendments

01 July 2024 - Pursuant to the UCPR r 36.17, Annexure A has been reuploaded as the conditions of consent, and this has been reflexed at [40].

The original Annexure A was removed, and Annexure B was renamed Annexure A as the conditions of consent.

Decision last updated: 01 July 2024