Heymann-Cohen Pty Ltd v Waverley Council

[2010] NSWLEC 1199

Land and Environment Court

of New South Wales

CITATION:

Heymann-Cohen Pty Ltd v Waverley Council [2010] NSWLEC 1199

PARTIES:

APPLICANT
Heymann-Cohen Pty Ltd

RESPONDENT
Waverley Council

FILE NUMBER(S):

10244 of 2010

CORAM:

Tuor C

KEY ISSUES:

DEVELOPMENT CONSENT :- s 96 application
decrease approved front setback of fouth floor
amended plans in response to changes agreed by experts

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

23 July 2010

 
DATE OF JUDGMENT: 

6 August 2010

LEGAL REPRESENTATIVES:

APPLICANT
Ms H Irish (barrister)
SOLICITOR
Susan Hill & Associates Lawyers

RESPONDENT
Mr M Staunton (barrister)
SOLICITOR
Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

6 August 2010

10244 of 2010 Heymann-Cohen Pty Ltd v Waverley Council

JUDGMENT

1 This is an appeal against the refusal by Waverley Council (council) of an application under s 96 of the Environmental Planning and Assessment Act, 1979 (EPA Act) to amend development consent DA200/2008 approved by council on 27 January 2009 as a deferred commencement (the development consent).

2 The development consent approved the part demolition of the existing hotel and construction of basement parking, retail, arcade and 41 residential units at the Bondi Hotel, Campbell Parade, Bondi Beach (the site).

3 Deferred commencement item 1 required that:

The plans shall be amended to setback the upper level (fourth floor plan) from the Campbell Parade frontage to align with the third arch of the adjacent Hotel Bondi building (approximately 15 metres from the front boundary) to enable the proposed development to present to Campbell Parade as a 15 metre tall building.

4 The deferred commencement was satisfied by amended plans and the proposal is currently under construction.

5 The s 96 application was lodged under s 96(1A). I granted leave to the application being amended to s 96(2). The application originally sought to delete the upper level setback imposed through the deferred commencement condition and to construct the fourth floor in the same alignment as the third floor (the application).

6 During the hearing the experts agreed to amendments to the application, which addressed their concerns. These amendments include a reduction in the approved setback of 15 metres to approximately 8 metres to align with the north east corner of the adjoining building to the south, known as the ‘Bondi Breakers’, and the introduction of an opening in the approved southern wall of the third floor. The applicant was granted leave to amend the application to reflect the experts’ agreement. The agreed plans and were filed with the Court on 4 August 2010 and are the plans for which consent is now being sought (the amended application).

7 The site, its locality, the history of the application and the planning controls are in the Statement of Facts and Contentions filed by the council on 11 May 2010 and in the Statement of Facts and Contentions in Reply filed by the applicant on 6 July 2010.

8 The Court visited the site and heard evidence from residents of the Bondi Breakers. Their principle concern was that the development consent already adversely affected their amenity through impacts of increased bulk, overshadowing and privacy. They were concerned that the application would exacerbate this impact. They also considered that reducing the setback of the fourth floor would increase its visibility from Campbell Parade and the beach and have an unacceptable streetscape impact and adversely impact on the heritage significance of the Bondi Hotel.

9 The residents acknowledged that the changes proposed by the experts would have less impact than the application given that the bulk of the fourth floor would not extend past their balcony and probably not intrude into their view corridor or result in other impacts. Further they considered that an opening on the third floor would be an improvement on the development consent as it would provide views and reduce bulk.

10 The Court heard expert evidence for the council from Ms K. Gordon, planner and Ms H. Lochhead, architect/urban designer, Mr G. Shiels, planner, Professor P. Webber, architect/urban designer and Mr J. Phillips, heritage consultant provided evidence for the applicant.

11 The experts prepared a joint report, which addressed the contentions in relation to the application.

12 In summary, the applicant’s experts considered that the development consent and the application would form an appropriate transition between the Bondi Hotel and the Breakers Building and was an appropriate response to these buildings, the area and the streetscape, whether from closer or more distant viewpoints. They considered the proposal to be consistent with the planning controls for the area.

13 Council’s experts stated that, as approved, the building would appear to have the same height as the Bondi Breakers building and to be one storey lower than the Bondi Hotel. This would maintain the dominance of the heritage listed hotel and its prominence in a corner location as well as providing a transition between the buildings and generally maintaining the street wall and height controls for Bondi Beach. The application would create additional height and bulk on Campbell Parade, would be highly visible and would compromise the landmark statues of the Bondi Hotel. They considered the application to be inconsistent with the planning controls for the area, which envisage a maximum height of 15 metres.

14 The experts agreed that the amended application would address the concerns raised by the council experts.

Findings

15 The amended proposal extends the approved fourth floor approximately 4 metres to the east to align with the façade of the Bondi Breakers. This limits the visual impact of the bulk of the building and amenity impacts such as privacy and overshadowing. The amended application would still be setback form Campbell Parade and maintain a similar relationship with the Bondi Hotel and the Bondi Breakers as the development consent. It would not materially increase the bulk or visibility of the upper level when viewed from the street or surrounding area.

16 In addition, the amended application provides an opening in the southern wall of level 3, which reduces the bulk and visual impact of the development consent from the Bondi Breakers and the dominance of the party wall when viewed from the public domain.

17 I accept the experts’ opinion that the amended application is acceptable and does not result in increased impacts beyond those resulting from the development consent.

1. The appeal is upheld.

2. The application under s 96 of the Environmental Planning and Assessment Act 1979 to amend development consent DA200/2008 for the Bondi Hotel, Campbell Parade, Bondi is approved. The consent is modified as set out in Annexure A.

3. The exhibits, except Exhibits 1 and A, may be returned.

___________________

Annelise Tuor
Commissioner of the Court