Gerdev Pty Ltd v Sutherland Shire Council

[2024] NSWLEC 1600

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gerdev Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1600

Hearing dates:

8 and 9 July 2024

Date of orders:

26 September 2024

Decision date:

26 September 2024

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA23/0166 and rely upon the amended plans and documents referred to at Condition 1 of Annexure A.

(2) The appeal is upheld.

(3) Consent is granted to Development Application DA23/0166 (as amended) for partial demolition and construction of a nine-storey shop top housing development over four basement levels, two lot stratum subdivision and strata subdivision at 97-105 Gerrale Street Cronulla, subject to the conditions of consent at Annexure A.

(4) The exhibits, other than 2, 3, 4 and A are returned.

Catchwords:

APPEAL – development application – shop top housing – residential apartment building development – partial demolition – heritage conservation – desired future character – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

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

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

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Transport and Infrastructure) 2021

Sutherland Shire Sydney Local Environmental Plan 2015, cll 2.2, 4.3, 4.4, 4.6, 5.10, Sch 5

Texts Cited:

Australia ICOMOS, The Burra Charter 2013

Heritage Council of NSW and Government Architect NSW, Design Guide for Heritage 2018

NSW Department of Planning and Environment Apartment Design Guide 2015

NSW Department of Planning and Environment, Planning Circular PS 20-002, May 2020

NSW Department of Planning and Environment, State Heritage Inventory

NSW Heritage Office, Heritage Curtilages 1996

Sutherland Shire Development Control Plan 2015

Category:

Principal judgment

Parties:

Gerdev Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
R White (Applicant)
J Cole (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Applicant)
Messenger Cole Solicitors (Respondent)

File Number(s):

2023/141479

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Gerdev Pty Ltd (the Applicant) against the deemed refusal of Development Application DA23/0166 (the DA) by Sutherland Shire Council (the Respondent).

2. At the date of its lodgement on 22 March 2023, the DA sought consent for demolition and construction of a nine-storey shop top housing development over four basement levels, two lot stratum subdivision and associated strata subdivision at 97-105 Gerrale Street Cronulla (the site).

3. In summary, the DA proposed works including:

1. Demolition of all existing structures at 101-105 Gerrale Street.

2. Demolition of elements of the existing heritage listed buildings at 97 and 99 Gerrale Street, retaining the buildings’ primary facades and some internal elements and features.

3. Construction of a residential apartment building comprising 30 units above two proposed retail units.

4. Construction of a four-storey basement car park with access from Nicolson Parade containing 62 residential spaces, eight retail spaces, three motorcycle spaces and a loading bay, along with residential storage, garbage storage and mechanical service areas.

4. Prior to the hearing, on 7 May 2024, the Court granted leave to the Applicant to amend the DA.

5. These amendments - intended to resolve or reduce the number of the Respondent’s contentions - resulted in a similar proposal and sought consent for demolition and construction of a nine-storey shop top housing development over four basement levels, two lot stratum subdivision and associated strata subdivision, comprising 27 residential apartments and three retail units.

6. The amended DA included the following design changes:

1. Reconfiguration of the basement to provide increased setbacks from the southern boundary and the northern corner of the site, with reduced setbacks to other street frontages.

2. Introduction of an additional retail unit at the ground level addressing Gerrale Street and removal of outdoor seating areas to the Nicholson Parade frontage.

3. Reconfiguration of communal open space at ground level and provision of additional communal open space at level two in the northern corner of the site.

4. Increased setback of the driveway to the southern boundary.

5. Increased extent of existing heritage fabric identified as being retained or reconstructed.

6. Reconfiguration of the first floor level, with reduced setback to Gerrale Street and the eastern boundary.

7. Reconfiguration of levels two and three with reduced setback to the eastern boundary.

8. Reconfiguration of levels three to seven with increased setback to the eastern boundary.

9. Reconfiguration of level eight with increased setbacks to the eastern and southern boundaries.

10. Revised materials, colours and fenestration.

7. Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), at the commencement of the hearing on 8 July 2024, by way of Notice of Motion, I granted leave to the Applicant to further amend the DA. Leave was not opposed by the Respondent.

8. These final amendments to the DA are generally be characterised as the provision of additional information, particularly a structural design and construction methodology for the proposed retention and reconstruction of heritage building fabric. It also included some further, relatively minor, design changes, intended to generally reflect the agreement of the expert planners, as follows:

1. Refinements to the residential lobby and its relationship to the adjacent retail units.

2. The retention of outdoor dining protected by a projecting awning along Gerrale Street.

3. Privacy screens rearranged along the southern elevation at level one.

4. The provision of toilet facilities within each retail unit and the residential communal open spaces.

5. The provision of privacy screens to mitigate against cross viewing between retail unit 03 and the ground level residential communal open space.

6. Minor amendments to improve internal amenity within a number of residential apartments more generally.

7. Amendments to improve privacy between level two residential communal open space and the adjacent residential apartment 201.

8. The provision of proposed subdivision plans.

9. The final amended architectural plans have been prepared by Vic Lake Architects and nominated architect Mr Vic Lake (NSW registered architect 4475). The architectural drawings form Tab 14 within Exhibit A in these proceedings and now form the subject of the appeal.

The site and its context

10. The site is located at 97-105 Gerrale Street, Cronulla and is legally described as Lot A in DP 23736, Lot B in DP 23736, Lot C in DP 23736 and Lot D in DP 23736.

11. The site has a northerly frontage to Gerrale Street of 42.265m and a westerly frontage to Nicholson Parade of 38.055m.

12. The site has an easterly common boundary of 33.3m and a southerly common boundary of 38.27m.

13. The site has a reasonably regular rectangular geometry, with an area calculated by survey of approximately 1,438sqm.

14. The site has a relatively flat topography, with a change in level evident across the site varying between RL 18.00 and RL 18.26 along the Gerrale Street frontage and RL 18.01 and RL 18.46 along the Nicholson Parade frontage. The southerly corner of the site rises to RL 19.43.

15. A two-storey brick residential apartment building is currently situated at 103-105 Gerrale Street and a single-storey rendered brick commercial building is situated at 101 Gerrale Street.

16. Together, the existing buildings at 97-99 Gerrale Street form a locally listed heritage item (number 1025) as set out at Sch 5 of the Sutherland Shire Local Environmental Plan 2015 (SSLEP) and are described as Commercial pair (shops/residence).

17. The site occupies a prominent location at the intersection of Gerrale Street, Nicholson Parade and Laycock Avenue, close to Cronulla Beach and Cronulla Station.

18. The site occupies elevated topography that is viewed from the nearby open spaces of Cronulla Park, Munro Park and Cronulla Beach.

19. To the south of the site is St Aloysius primary school, and situated immediately adjoining the common boundary is the school’s playground. The school grounds also include a locally listed heritage item (number 1026) identified at Sch 5 of the SSLEP as Thornton Hall.

20. To the east of the site and adjoining the common boundary is 107 Gerrale Street, occupied by a four-storey residential apartment building known as Kalimna.

21. Opposite the site to the north across Gerrale Street is Cronulla Park and Cronulla Beach, which together are identified as a locally listed heritage item (number 1023).

22. Set within the park and generally addressing the beach are the buildings associated with the Cronulla RSL Memorial Club and Cronulla Surf Life Saving Club.

23. An extent of brick kerbing along Gerrale Street in close proximity to the site is identified as a locally listed heritage item (number 1069).

24. Opposite the site, also towards the north, at the corner of Gerrale Street and Laycock Avenue (83-95 Gerrale Street), is an eight-storey residential apartment above at-grade car parking.

25. Opposite the site in a westerly direction, at the intersection of Nicholson Parade and Laycock Avenue, is a two-storey mixed-use residential building.

26. Gerrale Street, running north from the subject site can be characterised as a beachside promenade, including a range of mixed-use residential buildings with retail (often food and beverage) uses at ground floor addressing the park and beach to the east.

27. Buildings along the western side of Gerrale Street vary in scale but are generally reflective of the underlying development controls and range from approximately four- to nine-storeys.

28. Relevant to the resolution of this dispute are questions of heritage significance, local context and streetscape character, particularly the prominence of the site and its two heritage listed buildings at 97 and 99 Gerrale Street when viewed:

1. From Cronulla Park and Cronulla Beach.

2. Along Gerrale Street from the north.

3. From Cronulla Station across Monro Park.

The relevant planning controls

29. The key relevant statutory planning and development controls are as follows:

1. SSLEP.

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

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

4. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience)

5. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure).

6. Sutherland Shire Development Control Plan 2015 (SSDCP).

7. NSW Apartment Design Guide (ADG)

30. Pursuant to cl 2.2 of the SSLEP, the site is mapped within the Zone E2 Commercial Centre land use area. Development for the purposes of shop top housing development is permissible with consent.

31. The site is situated at a land use zone boundary along the southerly boundary, where St Aloysius primary school is mapped within the Zone SP 2 Educational Establishment land use area.

32. Pursuant to cl 4.3 of the SSLEP, the site is mapped with a development standard for maximum height of building of 30m.

33. Pursuant to cl 4.4 of the SSLEP, the site is mapped with a development standard for floor space ratio (FSR) of 3.0:1.

34. As noted previously, and pursuant to cl 5.10 and Sch 5 of the SSLEP, the existing buildings at 97-99 Gerrale Street form an identified heritage item (number 1025) and are described as Commercial pair (shops/residence).

History of the DA

35. The Respondent’s Amended Statement of Facts and Contentions, dated 30 May 2024 and forming Exhibit 2 in these proceedings, sets out the history of the DA. A concise summary follows.

36. The Applicant and Respondent met on 10 November 2022 at a pre-Design Review Forum (ARAP22/0004). The parties discussed a potential proposal for the demolition of existing structures, restoration works and modifications to the two heritage buildings, construction of a new residential apartment building comprising 30 apartments, basement carpark, retail and commercial spaces, services and landscape works.

37. The Applicant elected not to submit a more formal pre-DA proposal with the Respondent.

38. Instead, the DA was lodged by the Applicant with the Respondent on 22 March 2023.

39. The DA was publicly exhibited by the Respondent between 28 March and 13 April 2023. Eighty-eight submissions were received by the Respondent. These public submissions raised concerns included those summarised as:

1. Impacts upon significant heritage items.

2. Streetscape character and visual impacts.

3. Excessive excavation and associated impacts.

4. Impacts upon the adjacent school, including cross viewing, overshadowing and pedestrian safety.

5. Impacts upon 107 Gerrale Street, including overshadowing, acoustic privacy, cross viewing and potential for structural damage.

6. Impacts upon 83-95 Gerrale Street, including acoustic privacy, cross viewing and headlight glare from vehicles exiting the basement.

7. Inconsistency with a number of development controls and standards including for FSR, and ADG targets for solar access, communal open space and site setbacks.

8. Traffic and parking impacts, view loss and inadequate pedestrian amenity.

40. On 20 April 2023 the Applicant attended a Design Review Forum, where the DA was reviewed by the Respondent’s Design Review Panel, which raised concerns, provided feedback and made recommendations, summarised as follows:

1. Concern for the impacts of the DA upon heritage fabric and the character of the existing streetscape, particularly for the insufficient extent of heritage fabric proposed to be retained, and the need to consider in greater detail the heritage significance of existing interior fabric.

2. Concern for the proposed design, composition and relationship between the DA and the character, materials, alignment and distinctive corner location of the heritage item.

3. Recommendation for the DA to incorporate a podium with a scale and form more complementary of the scale and form of the heritage item.

4. Concern for the impacts arising from the proposed location of communal open space adjacent to the common boundary with 107 Gerrale Street.

5. Recommendation for the relocation of communal open space to the roof level of the heritage item to further delineate the relationship between the new residential tower form and existing heritage buildings.

6. Recommendation for the proposed tower articulation to be augmented and more consistently expressed on both street frontages, to frame and demarcate the heritage item, while signalling building entry points.

7. Feedback that the form and layout of the tower was generally well-located on the site and established a positive relationship with the corner heritage item, in a manner that was well-scaled and potentially elegant.

8. Concern that the DA does not respond appropriately to the urban qualities of the existing heritage frontage, lacks street character, is not well-integrated with the neighbour at 107 Gerrale Street and does not respond to the desired future urban character of Gerrale Street.

9. Concern that the ground level undercroft space exposed the proposed tower soffit and accentuated the scale of the tower, overwhelming the heritage item and reducing its significance in the overall composition.

10. Further recommendation for the incorporation of an extended two-storey podium for a fuller extent of the two street frontages.

11. Feedback that the proposed architectural language of the DA was too busy, overly glazed in its expression and lacked sufficient articulation for a residential building.

12. Recommendation that the basement entry be situated further from the common boundary with the adjacent school to provide greater separation and opportunities for screening landscape.

41. On 3 May 2023, the Applicant appealed to the Court against the Respondent’s deemed refusal of the DA. The DA remains undetermined by the Respondent.

42. As noted above at pars [4-6] on 7 May 2024, the Court granted leave to the Applicant to amend the DA.

43. Of relevance, the amended DA incorporated a number of recommendations of the Respondent’s Design Review Panel as noted at par [6].

44. The amended DA was publicly exhibited between 8 May and 24 May 2024. The Respondent received a further sixteen submissions, which restated many of the concerns raised with the original DA and additionally noted the following issues:

1. No provision is made for ground level parking for businesses.

2. Concerns for the impact of excavation on the local water table and hydrology.

3. Concern that the provision of balconies on the easterly side of the building increases privacy impacts at 107 Gerrale Street.

4. Concern for impacts of additional traffic upon the roundabout at the intersection of Laycock Avenue and Gerrale Street.

5. Inconsistency with ADG building separation distances to the adjacent school.

6. Concern the proposed temporary sound barrier would impact upon the retention of trees along the common boundary with the school.

45. At the commencement of the hearing on 8 July 2024, and consistent with the Court’s practice, I viewed the site with the parties and their experts to observe the existing site features and its immediate context.

46. The Court benefited from oral submissions made by local resident objectors during the site view. These objectors raised a number of concerns broadly consistent with those made in written submissions during the two public exhibition periods.

47. The majority of the resident objectors’ concerns raised during public exhibition and in oral submissions are reflected in the Respondent’s Amended Statement of Facts and Contentions.

The issues

48. The effect of the various design amendments described above is agreed to resolve a number of the Respondent’s contentions. Consequently, Contentions 4, 7 and 8 are no longer pressed. And similarly, Contentions 5, 6 and 11 have narrowed.

49. Those contentions still pressed by the Respondent are found in the Amended Statement of Facts and Contentions forming Exhibit 2 in these proceedings, and are set out in summary below:

Contention 1 - Heritage

The amended DA should be refused as the it will have an unacceptable impact upon the heritage items on the site and in the vicinity of the site.

Contention 2 - Streetscape and urban design

The amended DA should be refused as it will have an unacceptable impact upon the streetscape of Gerrale Street, Nicholson Parade and Laycock Avenue and as viewed from Cronulla Park, Monro Park and Cronulla Beach. The identified gateway location of the site and the heritage item on the site makes the streetscape impact of the development critical to the experience of entering Cronulla centre and use of surrounding public spaces.

Contention 3 - Height

The height of the proposed residential tower combined with the setbacks and impact upon the heritage item does not satisfy the objectives of the height control. In addition, the amended DA breaches the height control pursuant to cl 4.3 of the SSLEP and is not accompanied by a well-founded cl 4.6 variation request.

Contention 5 - Unacceptable impacts upon adjoining properties

The amended DA should be refused as it will have an unacceptable impact upon adjoining properties at 107 Gerrale Street and St Aloysius primary school (7-17 Giddings Avenue).

Contention 6 - Unacceptable internal amenity for residents

The amended DA should be refused as it will afford an unacceptable level of amenity for future residents.

Contention 9 - Subdivision

The amended DA for subdivision should be refused as no information is provided of the proposed strata subdivision and the information provided in relation to the stratum subdivision is inappropriate.

Contention 10 - Required conditions

The following matters can be addressed by conditions of consent:

1. Public domain upgrades.

2. Acid sulfate soils.

3. Access and car park design.

Contention 11 - Inadequate information

Inadequate information is provided to allow an assessment of the amended DA. Specifically, additional information is sought allow assessment of:

1. Heritage.

2. Streetscape.

3. Vehicular access.

4. Fire protection.

5. Subdivision.

6. Acoustic privacy.

7. Construction management.

8. Groundwater.

9. Contamination.

50. The final amended DA is described in architectural drawings that form Tab 14 within Exhibit A and it is this proposal that now forms the subject of the appeal.

51. The final amended DA incorporates additional information and some further - relatively minor - design changes intended to resolve a number of detailed particulars, and to reflect certain areas of agreement between the experts in their joint conferencing ahead of the hearing.

52. Acknowledging the Respondent’s contentions and related particulars still pressed, I note that at its essence, this matter can be reduced to four related questions:

1. Whether the final amended DA - proposing the partial demolition of a local heritage item - has an unacceptable impact upon the significance of the item itself and that of other heritage items in the immediate vicinity of the site (Contention 1).

2. Whether the final amended DA - proposing a residential apartment building situated above and behind the partially retained heritage item - has an unacceptable impact upon the streetscape character and urban design values of the local area (Contention 2).

3. Whether the final amended DA - by virtue of its proposed building form, scale and general arrangement - results in an unacceptable diminution of amenity available to existing neighbouring properties, primarily in terms of impaired acoustic and visual privacy, visual bulk, and impacts during construction (Contention 5).

4. Whether the final amended DA results in an unacceptable level of amenity available to future residents, primarily in terms of the location and design quality of communal open space, acoustic privacy impacts arising from the use of communal open space upon adjacent apartments, and due to a number of detailed internal planning adjacencies within particular apartments (Contention 6).

53. If these threshold issues were determined to be acceptable, and if the Applicant’s written request seeking to vary the height of building development standard pursuant to cl 4.6 of the SSLEP were upheld (Contention 3), then the parties and their experts generally agree that the final amended DA is in a form and supported by suitable documentation, as to allow the lawful grant of consent, subject to appropriate conditions of consent.

The evidence

The expert structural engineering evidence

54. The Court was assisted by experts in structural engineering. The experts are Mr Aaron Holbrook for the Applicant and Mr David Pepper for the Respondent. Mr Pepper contributed to the heritage experts’ joint expert report and prepared a Heritage Frontage Engineering Report, which forms Appendix II at Exhibit 3 in these proceedings.

55. In his report, Mr Pepper sets out nine concerns that elaborate upon the Respondent’s Contention 11. Mr Pepper notes that the Applicant’s Construction Management Plan (Tab 16 of Exhibit A) provides inadequate information to substantiate that the elements of the heritage item can be retained given the proximity of the proposed basement carpark.

56. Subsequent to Mr Pepper’s report being filed with the Court on 20 June 2024, Mr Holbrook has provided a Structural Letter of Heritage Facade Retention, dated 27 June 2024 (Tab 12 of Exhibit A) and Structural Design Plans, also dated 27 June 2024 (Tab 13 of Exhibit A).

57. In his oral evidence, Mr Holbrook spent some time explaining the proposed structural design and construction methodology described within the Structural Design Plans.

58. These drawings set out a sequence of thirteen stages of construction that would allow for the extent of retained existing heritage fabric to be supported as basement excavation occurs, and then incorporated into new building structure, along with some elements proposed to be reconstructed from materials salvaged from the partial demolition of the heritage item.

59. Under examination, the experts broadly agreed that - should the extent of retained heritage fabric be found to be acceptable - then the thirteen step construction sequence represents an appropriate construction methodology to protect this retained heritage fabric.

60. Key to the agreement of the experts was that retained in situ elements of heritage fabric not be load bearing in the final structural solution.

61. It was also broadly agreed by the experts that Mr Holbrook's Structural Design Plans described a design strategy (rather than a detailed design solution) and that the appropriate time for a detailed structural design solution would be prior to issuance of a Construction Certificate.

The expert heritage evidence

62. The Court was assisted by experts in heritage who conferred to prepare a joint report. The experts are Mr James Phillips for the Applicant and Ms Vanessa Holtham for the Respondent. Their joint expert report forms Exhibit 3 in these proceedings.

63. At the date of their joint conferencing, Mr Phillips and Ms Holtham were considering the amended DA for which the Court had granted leave on 7 May 2024.

64. At par 2 of the joint report, and quoting from the NSW State Heritage Inventory (SHI), Ms Holtham sets out details of the significance of the heritage item as follows:

“The site provides evidence [of] important early commercial activities in the Sutherland Shire. The site evidences the importance of the development of communication in the early development of the Sutherland Shire. Evidences the original subdivision of the Cronulla Peninsula 1895 – 1900. The place has an identified association with Albert Giddings, a significant person in the Sutherland Shire. The building is a rare example of Federation shop residence, an important typology in Cronulla. The building (No. 99) is a rare example of the Federation Arts and Crafts style in Cronulla. The building at 99 Gerrale Street has a high level of integrity. The building demonstrates principal characteristics of Federation shop/residence.”

65. Ms Holtham also notes at pars 3-4 that the heritage item is “rare in its precinct”, and describes the precinct as:

“…including Cronulla Railway Station…, Munro Park adjacent to the Railway Station and South Cronulla Beach and Cronulla Park, Cronulla Surf Club and Cronulla Sports Complex. Thornton Hall adjoins the site and the Brick Kerbing on Gerrale Street is also listed.”

66. At par 6 of the joint report, Ms Holtham then notes that:

“…since the 19th Century, Cronulla has offered a seaside destination for Sydneysiders and the development of the train line has facilitated its reputation as a popular place to visit. The availability of early images of the site indicates suggested importance as the original Cronulla commercial precinct, sited halfway between the historic Railway and c1909 Surf Club location. The subject site, which was also previously known as ‘Giddings Store and Post Office’ likely represents the site of some of the earliest commercial development in the Sutherland Shire.”

67. At pars 8-48 of the joint report, Ms Holtham sets out a comprehensive methodology for assessing the heritage impacts of the amended DA, with reference to a number of relevant guides as follows:

1. The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance, 2013 (The Burra Charter).

2. The NSW Apartment Design Guide (ADG).

3. NSW Heritage Office, Heritage Curtilages, 1996.

4. Better Placed Design Guide for Heritage, 2018 (Better Placed).

68. Ms Holtham’s key concerns for the amended DA can be characterised as:

1. The proposal having “little regard” for the heritage item, its curtilage and the heritage values of the local setting.

2. The demolition of too great an extent of the existing heritage item and its fabric.

3. Uncertainty of the details of proposed modification, reconstruction and conservation of the portion of the heritage item that is proposed to be retained.

4. The resultant form, scale and visibility of the proposed residential apartment building, its siting and relationship to the extent of retained heritage fabric.

5. The cumulative diminution of the heritage significance of the locally significant heritage item.

69. For his part, Mr Phillips notes at par 49 that:

“The proposal has been carefully designed to minimise the impact on the heritage building. A clear understanding of the building as a group of shops built over time is retained. The new building to the rear of the shops is clearly differentiated from the [heritage] item and is set back sufficiently for the item to be easily read and to maintain its prominence in the streetscape.”

70. Additionally, at pars 56-58 Mr Phillips says:

“The proposal is set back sufficiently to allow it prominence in the streetscape. The two street facing elevations are fully retained and restored. Part of the rear elevation is retained such that the item can be ‘read’ on three sides. The fourth elevation was blank, intending another building to be built hard up against it.”

“The proposal forms a backdrop to the item and is clearly distinguished from it.”

“[Heritage]…impact of new work is minimised through setback and through simplified building form and detail.”

71. In her oral evidence, Ms Holtham was taken to the architectural plans depicting the final amended DA (Tab 14 of Exhibit A) and the Structural Design Plans (Tab 13 of Exhibit A), where she noted various concerns and inconsistencies, principally regarding the proposed extent of demolition of the heritage item, including as follows:

1. The entry vestibule to 99 Gerrale Street.

2. The corresponding first floor balcony immediately above.

3. Absence of precise details for the proposed structural needling necessary to support the retained existing heritage facade, whilst the remainder of buildings are otherwise demolished and the site excavated.

4. Inconsistent depiction of structural columns between the architectural plans and the structural plans, particularly at the ground and first floors.

5. Absence of detail describing how the proposed new concrete ground floor slab will support the existing retained heritage facade.

6. Absence of detail accompanying the proposed structural design and construction methodology sequence.

7. Lack of clarity regarding existing awnings and their proposed demolition or retention.

8. Lack of clarity regarding the extent of demolition of existing floors within the heritage item.

9. Concern that, although retained, the existing painted advertising signage currently visible within the first floor cafe tenancy at 97 Gerrale Street, would lose its visibility from publicly accessible spaces.

72. In his oral evidence, Mr Phillips accepted that there was some inconsistency evident between the architectural and structural plans, but notwithstanding this, it is the architectural plans which represent the most resolved and coordinated depiction of the final amended DA.

73. Mr Phillips further accepted that a detailed structural design solution should follow in support of a construction certification, and noted that conditions of consent could be imposed to resolve any residual discrepancies.

74. In response to a number of Ms Holtham’s concerns for discrepancies between the architectural and structural plans, Mr Phillips offered that the existing internal columns are proposed to be dismantled and reinstated within the ground and first floors. He also clarified that the first floor balcony enclosure at 99 Gerald Street is proposed to be retained.

75. In further oral evidence, Ms Holtham noted that the assessment of heritage impacts and the merits of the final amended DA should be guided by heritage policies. She noted that the current heritage fabric is “in good shape”, reasonably intact and well-regarded by the local community.

76. Ms Holtham gave her view that while some intervention within the heritage item would be supportable, no conservation management plan or schedule of conservation works had been prepared to guide the design of the DA. She expressed concern that the proposed residential tower - particularly its northern corner - encroached too far into the curtilage above the heritage item.

77. Ms Holtham then expressed concern that too great an extent of existing interior features are proposed to be demolished, including pressed metal ceilings at 97 Gerrale Street along with chimney breasts, timber-framed floors, stained glass windows and associated staircase at 99 Gerrale Street.

78. Mr Phillips then set out his view that the final amended DA - by retaining the two principal building facades and the rear wall of 97 Gerrale Street - provides for the heritage item to remain visible “in the round” from vantage points within the public domain along Gerrale Street, Nicholson Parade and Laycock Avenue.

79. Mr Phillips further stated that necessary fire rating within the final amended DA constrains against the retention of timber-framed floors and timber floor linings. He noted that features such as the stair and stained glass windows were capable of salvage during demolition. He noted that the painted advertising signage is proposed to be retained in situ within the first floor apartment’s master bedroom.

80. Mr Phillips then explained the anticipated process for salvaging bricks from the proposed demolition of the party wall between 97 and 99 Gerrale Street and the subsequent process necessary to allow for the reconstruction of existing heritage fabric situated above the proposed basement. He also proposed the imposition of a condition of consent requiring the preparation of a Heritage Methodology Statement to guide the salvage and reconstruction process.

81. In response to the question of the relationship between the proposed residential tower sited above and behind the retained heritage fabric, Mr Phillips gave his view that the tower form was setback sufficiently to the northern corner, noting that the planning experts also offer evidence in this regard.

82. Finally, giving concurrent evidence, Ms Holtham and Mr Phillips offered broad agreement to a number of aspects discussed in the joint report, including:

1. The rarity and degree of intactness of the existing heritage item.

2. The relative heritage significance of 97 and 99 Gerrale Street, with 99 Gerrale Street agreed to be represent the more significant element associated with the heritage item.

3. The most significant heritage fabric at 99 Gerrale Street being the entry vestibule, front facade, first floor balcony and awning.

4. The relevance and applicability of guiding documents such as the Burra Charter, Better Placed and the ADG.

5. The general suitability of reconstruction as one of a number of heritage conservation techniques.

83. Notwithstanding this broad agreement, the heritage experts remain apart on the acceptability of the final amended DA and its impacts upon the heritage item.

The expert planning evidence

84. The Court was assisted by experts in planning who conferred to prepare a joint report. The experts are Mr Stuart McDonald for the Applicant and Ms Kerry Gordon for the Respondent. Their joint expert report forms Exhibit 4 in these proceedings.

85. At the date of their joint conferencing, Mr McDonald and Ms Gordon were considering the amended DA for which the Court had granted leave on 7 May 2024.

86. At pars 1-3 of the joint report, the experts set out the extent of their agreement in relation to Contention 2 - Streetscape and urban design - summarising the key statutory planning controls for land use, FSR and building height, and identifying the heritage item. They also note that the site is situated within the Cronulla commercial core and identify adjacent land use zones, particularly those of the school to the south and the park to the north.

87. At par 4 of the joint report, Mr McDonald sets out in summary the implications of the SSLEP as follows:

“Based on the statutory planning controls applicable to the site, it would be reasonably anticipated that a scale of new development would be in the order of 30m in height and include a FSR in order of 3:1. The Council, in applying these statutory standards, did so, while concurrently identifying 97-99 Gerrale St (Nos 97-99) as heritage items. At the time of making SSLEP the full suite of statutory controls were consciously applied to the site. Similarly, the statutory height and FSR standards were introduced in SSLEP in the full knowledge of the existence of the primary school adjoining to the south-west.”

88. Mr McDonald then goes on at par 7 of the joint report to set out relevant aspects of the SSDCP:

“The SSDCP Chapter 19 B3 Commercial Core Cronulla Centre Strategy identifies the site within the commercial core, with the accompanying Strategy Map further identifying the site as a ‘Gateway location. Emphasise with buildings/trees.’”

89. Mr McDonald then states, at par 8, that:

“The proposal is consistent with the Centre Strategy and associated Map, that specifically nominates the need to emphasise the site with new building(s). This emphasis is reinforced by the core statutory controls under SSLEP that include a 30m height control and a FSR of 3:1. The strategy, in concert with the SSLEP, anticipates a major building on the site.”

90. Mr McDonald goes on in the joint report to highlight points of consistency between the amended DA and provisions of the SSDCP and its Cronulla Centre Strategy. And at par 22 of the joint report, he states:

“…broadly, the local context is a commercial core anticipated to undergo substantial change in terms of the height and scale of new development. The Cronulla commercial core, as identified by the E2 zoning, has generally been “up-zoned”, with locations and sites where the greatest extent of change may be anticipated being those with the maximum height of 30m (identified in SSDCP as 9-10 storeys) and the highest FSR in the centre of 3:1, with both controls applying to the subject site. The character of the site and location will change, balanced with achieving acceptable heritage outcomes, given the heritage items occupying part of the site.”

91. In contrast, Ms Gordon sets out her position at par 23 of the joint report as follows:

“An appropriate response by future development on the site within the streetscape context must be informed by the controls applicable to the site and the context of the site, both of which will determine the desired future character of the locality. In such an analysis, greater emphasis should be given to higher order controls such as those contained in SEPPs and LEPs, whilst still giving due consideration to lower order controls such as those contained in the ADG and DCPs, which guide development. Where conflict occurs between the two levels of controls, the higher order controls should prevail.”

92. Ms Gordon continues at pars 24-27 to set out her view on the appropriate operation of the various development standards and controls:

“As agreed by the experts, the core statutory planning controls applicable to the site under SSLEP are the Commercial Centre zoning, the heritage listing of two buildings on the site and the building envelope controls set by the maximum height and FSR of 30m and 3:1, respectively. These controls identify the desired future character for the site at a high level, addressing use, heritage and maximum envelope and are supported by the lower order controls. These controls also inform an appropriate response to streetscape, albeit at a higher, rather than detailed level.”

“The objectives of the heritage provisions within SSLEP are to conserve the environmental heritage of the Shire and heritage items, including associated fabric, settings and views. In this instance that would be achieved by the retention and conservation of the existing heritage item on the site with a carefully designed and appropriately scaled development to the rear of the [heritage] item and on the remaining land within the site”

“The height and FSR controls provide a loose maximum envelope within which the development is required to be located. Such envelopes are typically provided over a portion of a locality (usually identified by zoning or a portion of an area of zoning) and are general controls which are usually not site specific and do not generally consider site specific context such as identification as a heritage item, the orientation of a site or the existing form of development adjoining a site.”

“The intent of such envelope controls is to generally locate height and floor space within a precinct, however the controls are maximum controls and as such inherently anticipate that some sites within the precinct will achieve less than the maximum control based on the context of the site. In my opinion the maximum envelope controls in SSLEP do not specifically take into consideration the heritage significance of a site…”

93. Additionally, at pars 30-31 of the joint report, Ms Gordon sets out the central components of her argument against the appropriateness of the proposed scale and form evident in the amended DA as follows:

“It is also my opinion that the maximum controls do not override the heritage provisions or supersede them in anyway. It is my opinion that the heritage controls must be considered in determining the suitable building design that should be placed on a site with a heritage listing (and adjoining a property with a listed item) and that the maximum height and FSR controls may not be achievable on all sites with a heritage listing.”

“In my opinion, appropriate design on any site containing a heritage item cannot occur until consideration has been given to the need to retain the item and the carrying out of an assessment of the appropriate bulk and scale of the development having regard to the bulk and scale of the item and its setting. Such an assessment may, in some cases, result in an appropriate development envelope that is [less] than the LEP envelope controls. This does not result in a conflict between the controls as the envelope controls are a maximum control.”

94. Turning to Contention 3 - Height, the planning experts set out the extent of their agreement at pars 45-47 of the joint report. This includes agreement that the height of building development standard for the site pursuant to cl 4.3 of the SSLEP is 30m, where the amended DA proposes a maximum building height of 30.9m measured to the top of the screen enclosing the rooftop plant, exceeding the control by 900mm or 3%.

95. Additionally, the planning experts agree that all habitable floors of the amended DA, its parapet and roof (other than the roof of the lift and services overrun) are situated below 30m in height. Further, the experts agree that the proposed building height exceedance, does not give rise to any additional or unacceptable overshadowing, loss of views or loss of privacy.

96. As required by cl 4.6 of the SSLEP, Mr McDonald has prepared a written request seeking to vary the development standard for height of building. The written request form Exhibit B in these proceedings.

97. At pars 55-64 of the joint report, Ms Gordon sets out a series of reasons why, in her opinion, this written request does not satisfactorily justify the proposed height of building exceedance. A summary of these reasons follows:

1. The amended DA is not compatible with the heritage item and does not conserve its heritage significance, (or that of heritage items adjoining the site) and the height variation cannot be supported.

2. For similar reasons as those raised in Contention 2, a proposed development of 30m in height does not necessarily represent the desired future character. The building height control is a maximum for the general location of height within the precinct and is not one that is necessarily suitable for all sites, nor one that has been conceived specifically addressing the heritage significance or other constraints of a site.

3. In the absence of a positive assessment that the amended DA and its proposed height for the residential tower element is suitable (given the site’s heritage constraints), the proposal cannot be found to be consistent with the desired scale and character of the street or locality.

4. Deferring to the evidence of the Respondent’s heritage expert, the amended DA creates adverse impacts and on the heritage significance of the site’s heritage item.

98. In their oral evidence, the planning experts were each examined on the appropriateness of the design changes introduced in the architectural plans accompanying the final amended DA (Tab 14 of Exhibit A).

99. Ms Gordon acknowledged some improvement evident in the final amended DA, but remained concerned with the following perceived deficiencies:

1. The glass line associated with retail unit 03 has not moved to the street alignment and this setback serves to weaken the continuity of the street wall.

2. The adopted architectural expression for the component of the podium associated with retail unit 03 does not demonstrate adequate solidity given its proximity to the adjacent heritage item.

3. The eastern wall of retail unit 03 retains screened glazing to the adjacent residential communal open space at the ground floor, creating cross viewing and acoustic privacy impacts.

4. The proposed ground level residential communal open space is relatively isolated and disconnected from the primary circulation spaces of the residential building.

5. Uncertainty regarding the utility of the proposed awning structure over residential communal open space at ground level and its possible incompatibility with proposed landscape treatments.

6. Discrepancies identified within the subdivision plans.

7. The omission of a lift opening to the shared commercial and residential corridor at ground level.

8. The omission of an entry door to residential unit 102.

9. The relationship of reconstructed columns and associated planning inefficiencies within residential units 101 and 102.

10. Acoustic privacy impacts between the proposed communal open space adjacent to residential unit 201.

11. Acoustic privacy impacts between the final amended DA and existing neighbouring dwellings at 107 Gerrale Street.

100. Turning to the topic of the relationship between the provisions of the SSLEP, the SSDCP and other relevant guides, in his oral evidence, Mr McDonald gave his view that the site benefits from “specific built form controls”.

101. Mr McDonald explained that these controls are summarised in the diagram included as Figure SM3 at par 23 of the joint report. This diagram (taken from the SSDCP) describes development on the site in the form of a two-storey podium, 4m setback and tower form to 30m in height.

102. Further Mr McDonald noted that the ADG establishes additional guidance related to building separation and boundary setbacks.

103. Mr McDonald also noted that the SSDCP doesn’t identify any specific controls for active street frontages at the subject site, but does nominate a zero site setback for the portion of the site occupied by the heritage item.

104. Taken to Figure SM1 at par 7 of the joint report, Mr McDonald agreed that this diagram (the Cronulla Centre Strategy Map from the SSDCP) indicates the site occupying one of a number of “gateway locations” intended to be emphasised with “buildings [or] trees.” Mr McDonald stated that this provided some license to an Applicant to propose either.

105. Ms Gordon noted that the map symbol identifying the gateway location is generic and together identifies a portion of the subject site, the intersection of Gerrale Street and Nicholson Parade, Cronulla Park and the Cronulla RSL Memorial Club site. In such an instance, Ms Gordon stated that the SSDCP map should be given less weight.

106. Under cross examination, Ms Gordon accepted that the final amended DA conformed with ADG controls and the SSDCP requirement for a 4m setback along Gerrale Street and Nicholson Parade, reiterating though that the proposal represents a poor interface with the heritage item.

107. For his part Mr McDonald provided oral evidence that the SSDCP controls are “deliberate and quite bespoke”, have existed since 2015 and are consistent with the SSLEP development standards for FSR and building height, and for these reasons should be given weight.

Findings

108. I now move to uphold the appeal. In deciding this course, I set out my reasons over the following paragraphs.

109. Firstly, it is useful to restate that this dispute rests on four related questions:

1. Whether the final amended DA - proposing the partial demolition of a local heritage item - has an unacceptable impact upon the significance of the item itself and that of other heritage items in the immediate vicinity of the site (Contention 1).

2. Whether the final amended DA - proposing a residential apartment building situated above and behind the partially retained heritage item - has an unacceptable impact upon the streetscape character and urban design values of the local area (Contention 2).

3. Whether the final amended DA - by virtue of its proposed building form, scale and general arrangement - results in an unacceptable diminution of amenity available to existing neighbouring properties, primarily in terms of impaired acoustic and visual privacy, visual bulk, and impacts during construction (Contention 5).

4. Whether the final amended DA results in an unacceptable level of amenity available to future residents, primarily in terms of the location and design quality of communal open space, acoustic privacy impacts arising from the use of communal open space upon adjacent apartments, and due to a number of detailed internal planning adjacencies within particular apartments (Contention 6).

110. If these threshold issues were determined to be acceptable, and if the Applicant’s written request seeking to vary the height of building development standard pursuant to cl 4.6 of the SSLEP were upheld (Contention 3), then I am satisfied that the final amended DA is in a form and supported by suitable documentation, as to allow the lawful grant of consent, subject to conditions of consent.

111. At the outset, I note the DA has been amended a number of times since the appeal was lodged, and particularly in a manner responsive to the advice and recommendations of the Respondent’s Design Review Panel, as set out in at par [40].

112. The significant design amendments include:

1. Increased extent of existing heritage fabric identified as being retained or reconstructed.

2. Reconfiguration of the basement to provide increased setbacks from the southern boundary and the northern corner of the site, with reduced setbacks to other street frontages.

3. Introduction of an additional retail unit at the ground level addressing Gerrale Street.

4. Provision of additional communal open space at level two in the northern corner of the site.

5. Increased setback of the driveway to the southern boundary with the school.

6. Revised materials, colours and fenestration adopting an alternative architectural language to that originally proposed.

113. The hearing involved some controversy regarding the certainty of the proposal. I am satisfied that the final amended DA, particularly the architectural plans, are now sufficiently consistent and coordinated to adequately describe the proposed development.

Contention 1 - Heritage

114. In the circumstance of this matter, I find that the final amended DA meets the merit test for an acceptable heritage impact established by cl 5.10(4) of the SSLEP, and that the heritage values of the item at 97-99 Gerrale Street, and those of other heritage items in this part of Cronulla, are - on balance - conserved.

115. I am satisfied that the fundamental proposed siting strategy, which retains the primary facades of the two heritage buildings, in concert with a minimum 4m upper level setback to the proposed residential tower form above, is an appropriate response to conserving the heritage values of the item.

116. Further, the retention of the northern, western and a significant portion of the southern facades, and their incorporation into the proposed composition and massing of the new building form, permits the original pair of buildings to be distinctly read ‘in the round’.

117. In this regard, I generally prefer the evidence of Mr Phillips, where he states at par 49 of the joint report (Exhibit 3):

“The proposal has been carefully designed to minimise the impact on the heritage building. A clear understanding of the building as a group of shops built over time is retained. The new building to the rear of the shops is clearly differentiated from the [heritage] item and is set back sufficiently for the item to be easily read and to maintain its prominence in the streetscape.”

118. Further, I accept Mr Phillips’ view, at pars 56-58 of the joint report, where he notes:

“The proposal is set back sufficiently to allow it prominence in the streetscape. The two street facing elevations are fully retained and restored. Part of the rear elevation is retained such that the item can be ‘read’ on three sides. The fourth elevation was blank, intending another building to be built hard up against it.”

“The proposal forms a backdrop to the item and is clearly distinguished from it.”

“[Heritage]…impact of new work is minimised through setback and through simplified building form and detail.”

119. I also accept that detailed features of the retained primary facades, such as awnings, painted brickwork, entry vestibule, first floor balcony, steel and timber windows, parapet signage and chimneys are proposed to be retained and restored as part of the proposed heritage conservation strategy.

120. Similarly, I accept that the proposed reconstruction of internal features of the heritage item, including portions of party walls and timber columns, is an appropriate means of conserving heritage values in the circumstances of this case.

121. In terms of impacts of the final amended DA upon other nearby heritage items, including Thornton Hall within the grounds of the adjacent primary school, Cronulla Park, Cronulla Beach, Monro Park and the brick kerbing in Gerrale Street, I am satisfied that the final amended DA does not materially diminish the heritage values evident in this part of Cronulla.

122. I find that the general heritage significance, character and visual cohesion of the various heritage items will not be unreasonably impaired by the final amended DA.

123. At pars 65 and 66 of his joint report, Mr Phillips says:

“It is agreed that the site does adjoin Thornton Hall. It will be observed that the proposal [has] little heritage impact on this building. As noted above it is separated from the subject site by trees on the school’s property and from the street by plantings inside the school boundary.”

“…The [heritage] items are some distance from the subject site and are subject to the impacts of general development in the area. The proposal adds no particular impact to these items.”

124. In forming this view, I also find to impose of a number of conditions of consent, which are intended to clarify and specify the detailed heritage conservation techniques necessary to restore or reconstruct particular features of the heritage item.

125. The relevant conditions of consent are as follows:

“2A. Design and Construction

…

No additional demolition of the heritage items shall be shown in the construction certificate plans than shown on the approved plans.

The original “Giddings Store” signage to the Gerrale Street frontage shall be retained and restored. Details to be provided to and approved by Council’s heritage advisor/director of town planning prior to the issue of approved Construction Certificate and details in the Construction certificate plans.

The eastern wall of Retail Suite 3 shall be constructed of masonry.

The chimneys on the Nicholson Street Elevation of No. 97 are to be retained and the architectural floor plans are to be amended to be consistent with the elevation plans that show retention of the chimneys.

The chimneys on No. 99 Gerrale Street, as noted on the plans, are also to be retained.

Demolition Plan A0117 Rev C is to be amended so that:

A. The dotted brown lines with the dark/black lines over are shown in a legend which nominates those areas to be re-constructed using reclaimed materials, or retained if possible and shown in a colour other than brown, orange, grey or black.

B. The non-party walls marked in solid black of No. 97 Gerrale Street and No. 99 Gerrale Street on the ground floor immediately south of the party wall is to be noted as removed and reinstated.

C. It is to be consistent with all other architectural plans.

D. The original wooden columns are to be removed and stored during construction and reinstated prior to the occupation certificate as part of the restoration works.

E. Party walls to Nos 97-99 Gerrale Street and 99-101 Gerrale Street are to be retained and if necessary rebuilt for the extent shown in black on the existing Demolition plan.

F. The wall between No. 97 Gerrale Street and 99 Gerrale Street is to be retained in the front section in order to retain the significant mural. This will be located in the bedroom wall Apartment 101.

G. Shopfront of No. 99 Gerrale Street is to be retained.

H. The balcony to Level 1, in No. 99 Gerrale Street is to be retained and not removed and reinstated.

…

Details of any new openings and insertions (both internal and external) within the heritage item shall be provided at a scale of 1:20. The details must be sympathetic to the character of the heritage item and its details.

…

Amended plans are to be prepared and agreed with Council’s Heritage Officer or Consultant. Once approved the details of these design changes must be included in documentation submitted with the application for a Construction Certificate and prior to any works commencing on the site.

…

2C. Heritage Methodology Statement

A heritage methodology statement shall be prepared to demonstrate the removal where shown on the architectural drawings of walls and other fabric that are later to be reinstated.

This methodology will deal with the dismantling of the wall, in a manner that retains the maximum number of original bricks, their safe storage and the reconstruction of those walls from which they were taken.

The heritage methodology statement is to be submitted with the application for the construction certificate.”

126. I impose these particular conditions mindful of the parties' written submissions on their relative appropriateness and given the controversy regarding discrepancies and ambiguity evident within the final amended DA documents that arose during the hearing.

Contention 2 - Streetscape and urban design

127. This contention is structured around a series of issues related to the streetscape character of Gerrale Street, Nicholson Parade and Laycock Avenue, and the presentation of the final amended DA when viewed from Cronulla Park, Cronulla Beach and Monro Park.

128. The acceptability of the final amended DA, its presentation as an identified gateway, and the resultant streetscape and urban character is derived in large part from the suite of relevant development standards and developments controls applying to the site.

129. I find that the interplay between development standards for height of building and FSR as set out in the SSLEP, and some of the more flexible development controls set out in the SSDCP or ADG, is relatively clear and consistent.

130. In that regard, I generally prefer the evidence of Mr Mc Donald, particularly his assessment that this suite of development controls is “deliberate and quite bespoke”. Relevantly, at par 4 of Exhibit 4, Mr McDonald states:

“Based on the statutory planning controls applicable to the site, it would be reasonably anticipated that a scale of new development would be in the order of 30m in height and include a FSR in [the] order of 3:1. The Council, in applying these statutory standards, did so, while concurrently identifying 97-99 Gerrale St (Nos 97-99) as heritage items. At the time of making SSLEP the full suite of statutory controls were consciously applied to the site.”

131. I next find that in the circumstances of this matter, the SSLEP provisions for height of building and FSR are not incompatible with those for heritage conservation. Rather, these controls imply a renewal scenario for the site and its extant heritage item more or less as that reflected in the final amended DA.

132. For reasons similar to those set out when dealing with Contention 1 above, I accept that the retention of the primary heritage facades and the 4m upper level tower setback - together with the general simplification of the tower form and its strong vertical emphasis relating to the alignment of the retained portion of the heritage item and primary building entry points below - are sufficient to achieve an acceptable streetscape presentation and an appropriate urban design response anticipated by the full suite of development controls that apply to the site.

Contention 5- Unacceptable impacts upon adjoining properties

133. Turning to Contention 5, I note that this contention narrowed in scope as the DA was amended during these proceedings.

134. The remaining particulars relate to the impacts of proposed building bulk upon the neighbouring primary school, a failure to transition to a lower scale close to the common boundary and more generally, visual impacts of bulk upon the school.

135. Further particulars identify concerns for construction management, safety, amenity and noise impacts upon the school and students during construction, as well as the proposed relocation of an encroaching shed.

136. Particulars are also raised regarding impacts of cross viewing and acoustic privacy unreasonably affecting the existing residential apartment building at 107 Gerrale Street.

137. Dealing first with impacts upon the neighbouring school, I am satisfied that the impacts of bulk, scale and physical proximity have been adequately resolved in the final amended DA.

138. The final amended DA introduces a defined two-storey podium encompassing the basement entry with a 6m separation from the common boundary to the school. Thornton Hall, the heritage item on the school site, is set back approximately 14m from the common boundary and I am satisfied that impacts (including heritage impacts) are acceptable.

139. Other amendments to the DA work to retain deep soil and existing trees along the southern boundary. Similarly, it is agreed between the planning experts that the school shed will not require relocation despite its encroachment across the subject site boundary.

140. In considering the construction phase impacts upon the school of noise, safety, amenity and air quality, I impose a number of conditions of consent, which are intended to mitigate against these impacts as follows:

“50. Noise Control and Permitted Hours for Building and Demolition Work

A.   General

To manage noise impacts to the surrounding properties, demolition, excavation, or construction activities shall be managed in accordance with the NSW Department of Environment and Climate Change (now Environment Protection Authority). Interim Construction Noise Guideline (ICNG) 2009, EPA Draft Construction Noise Guideline and Australian Standard 2436 - 2010 Guide to Noise Control on Construction, Maintenance and Demolition Sites.

Noise and/or vibration monitoring equipment shall be installed on site with the results to be provided to Council and the adjoining school and operated to determine the noise and/or vibration impact. These results should be used to determine what activities are causing significant impacts and the applicant/developer’s noise consultant, in consultation with Council’s compliance officer (and noise consultant if any), are to direct amendments to the construction operation to reduce these significant impacts with reasonable and feasible measures as outlined in the ICNG 2009.

Dilapidation reports

Subject to the receipt of permission of the affected landowner, dilapidation report/s of adjoining buildings are to be prepared by an appropriately qualified practising structural engineer and submitted for the approval of the Principal Certifier -

a)   prior to the commencement of demolition/excavation works; and

b)   on completion of construction demolition/excavation works.

Copies are to be provided to affected land owners of adjoining properties.

Demolition, Excavation and Construction Noise and Vibration Management Plan

A site specific noise management plan must be submitted to the Private Certifier and Council prior to issue of any Construction Certificate relevant to that stage of the development.

The Plan must be prepared by a suitably qualified person who is a member, at Member Level, of -

the Institution of Engineers Australia and the Australian Acoustic Society; or working for, and under the supervision of, a firm that is a member of the Australasian Association of Acoustic Consultants.

The plan must include but not be limited to the following -

a)   Identification of noise sensitive receivers near to the site (including the adjoining school).

b)   Identification of the major sources of noise emissions (including mobile plant and machinery to be used during demolition, excavation and bulk earth works including rock hammering if required, and the transport of materials to and from site in trucks).

A prediction as to the level of noise impact likely to affect the nearest noise sensitive receivers from the use and proposed number of high noise intrusive appliances intended to be operated onsite.

c)   A statement should also be submitted outlining whether or not predicted noise levels will comply with the noise criteria stated Tables 3 and 4 of the Interim Construction Noise Guideline (ICNG) 2009 Section 4 Quantitative Assessment method.

Where resultant site noise levels are likely to be in exceedance of this noise criteria then a suitable proposal must be given as to the duration and frequency of respite periods that will be afforded to the occupiers of neighbouring property.

d)   A representative background noise measurement (LA90, 15 minute) should be submitted, assessed in the vicinity of any potentially affected receiver locations and measured in accordance with AS 1055:1.2.1997.

e)   Confirmation of the level of community consultation that has/is and will be undertaken with Building Managers/ occupiers of the main adjoining noise sensitive properties likely to be most affected by site works and the operation of plant/machinery particularly during the demolition and excavation phases.

f)   Confirmation of noise monitoring methodology that is to be undertaken during the main stages of work at neighbouring noise sensitive properties in order to keep complaints to a minimum and to ensure that noise from site works complies with the noise criteria Tables 3 and 4 of the Interim Construction Noise Guideline (ICNG) 2009.

g)   What course of action will be undertaken following receipt of a complaint concerning offensive noise. This shall include ceasing demolition, excavation and construction work until alternatives can be determined.”

141. Turning then to the perceived impacts of the final amended DA upon 107 Gerrale Street, the planning experts are agreed that this contention is capable of resolution by way of the imposition of conditions of consent.

142. The effect of these conditions of consent is to make the eastern wall of retail unit 03 solid masonry, and to require some adjustment to the privacy screens accommodated within units 105, 203 and 303 to limit opportunities for cross viewing between the adjacent properties.

Contention 6- Unacceptable internal amenity for residents

143. This contention is structured around two key particulars. Firstly, it is contended that the design and location of communal open space is poor and results in an unacceptable level of amenity for residents.

144. Secondly, a series of issues related to the internal amenity afforded to proposed residential units 101, 102, 103, 202, and 302 results in an unacceptable level of amenity for these apartments, primarily in terms of balcony size, poor outlook from bedrooms and other internal planning inefficiencies.

145. In these matters, ultimately I find that the final amended DA and the imposed conditions of consent work to lift the resultant level of amenity to the point of acceptability.

146. Any residual privacy or acoustic impacts created by the final amended DA are relatively minor and not inconsistent with a development comprising 27 residential units and in isolation I find this is not sufficient grounds to warrant refusal.

147. On balance, I am satisfied that the residential amenity provided by the final amended DA demonstrates adequate merit and performs to a sufficient degree as to warrant the grant of consent.

Contention 3 - Height - Upholding the Applicant's cl 4.6 written request

148. Having formed a view that the final amended DA may be granted consent, I turn to the key jurisdictional tests, commencing with the proposed exceedance of the height of building development standard as set out at cl 4.3 of the SSLEP.

149. In such an instance, cl 4.6(3) of the SSLEP requires consideration of a written request from the Applicant demonstrating that compliance with the 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.

150. Clause 4.6(4) of the SSLEP 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.

151. Additionally, cl 4.6(4)(b) of the SSLEP 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.

152. As required by cl 4.6 of the SSLEP, the Applicant has provided a written request, prepared by SJB, dated 4 April 2024 (Exhibit B) seeking to vary the height of building development standard set out at cl 4.3 of the SSLEP.

153. The final amended DA proposes a maximum building height of 30.9m measured to the top of the screen enclosing the rooftop plant. This exceeds the 30m maximum height of building development standard by 900mm or 3%.

154. I am satisfied, that the Applicant’s written request adequately justifies the proposed variance to the height of building development standard for the following reasons:

1. The final amended DA achieves the objectives of the height of building development standard notwithstanding the proposed exceedance.

2. The final amended DA proposes a new nine-storey mixed residential apartment building, set above and behind the retained portion of the existing heritage item in a form which is generally consistent with the suite of development controls that apply to the Cronulla commercial centre and is representative of the desired future character anticipated by these controls.

3. The final amended DA is consistent with the relevant development standard for FSR and any notional reduction in height (by one storey) to achieve compliance would reduce the corresponding FSR to some extent, translating to a shortfall of dwelling supply in a location that is well suited to meet the Respondent’s strategic planning objectives and targets for housing.

4. The final amended DA proposes to exceed the height of building development standard by a relatively minor extent (900mm or 3%) in a manner which will not be easily perceived from key vantage points in the local area because the exceedance is centrally located within the tower footprint and set back from the building perimeter.

5. The building height exceedance brings with it no impacts of additional overshadowing, reduced daylight, view impacts or cross viewing.

6. I am satisfied the final amended DA is consistent with the objectives of the SSLEP Zone E2 Commercial Centre land use zone, which are:

• To strengthen the role of the commercial centre as the centre of business, retail, community and cultural activity.

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

• To encourage development that has a high level of accessibility and amenity, particularly for pedestrians.

• To enable residential development only if it is consistent with the Council’s strategic planning for residential development in the area.

• To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

7. I am satisfied the final amended DA is consistent with the objectives of cl 4.3 of the SSLEP, which are:

1. to ensure that the scale of buildings—

1. is compatible with adjoining development, and

2. is consistent with the desired scale and character of the street and locality in which the buildings are located or the desired future scale and character, and

3. complements any natural landscape setting of the buildings,

2. to allow reasonable daylight access to all buildings and the public domain,

3. to minimise the impacts of new buildings on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion,

4. to ensure that the visual impact of buildings is minimised when viewed from adjoining properties, the street, waterways and public reserves,

5. to ensure, where possible, that the height of non-residential buildings in residential zones is compatible with the scale of residential buildings in those zones,

6. to achieve transitions in building scale from higher intensity employment and retail centres to surrounding residential areas.

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

156. Further jurisdictional prerequisites to the grant of consent in this matter include the following items:

1. The Applicant has provided a BASIX Certificate number: 1370361M_03 dated 13 September 202 in satisfaction of the requirements of SEPP BASIX and s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

2. The Applicant has provided a Design Verification Statement, dated 18 April 2024, prepared by Vic Lake Architects (and its nominated architect, Mr Vic Lake, NSW Registered Architect 4475) in satisfaction of the requirements of SEPP 65 and s 29 of the EPA Reg.

Disposing of the matter

157. In moving to now dispose of the appeal, I note this decision involves the Court exercising the function under s 4.16(1)(a) of the EPA Act to determine the DA by way of the grant of consent.

Orders

158. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA23/0166 and rely upon the amended plans and documents referred to at Condition 1 of Annexure A.

2. The appeal is upheld.

3. Consent is granted to Development Application DA23/0166 (as amended) for partial demolition and construction of a nine-storey shop top housing development over four basement levels, two lot stratum subdivision and strata subdivision at 97-105 Gerrale Street Cronulla, subject to the conditions of consent at Annexure A.

4. The exhibits, other than 2, 3, 4 and A are returned.

M Pullinger

Acting Commissioner of the Court 

Annexure A

Plans 

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Decision last updated: 26 September 2024