HSN Holding Bondi Pty Ltd v Waverley Council

[2015] NSWLEC 1322

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	HSN Holding Bondi Pty Ltd v Waverley Council [2015] NSWLEC 1322
Hearing dates:	4 August 2015
Date of orders:	11 August 2015
Decision date:	11 August 2015
Jurisdiction:	Class 1
Before:	Brown ASC
Decision:	See par 22
Catchwords:	MODIFICATION: application to modify approval for demolition of an existing dwelling and the construction of a new mixed use building comprising nine residential units by the addition of a studio apartment -
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	HSN Holding Bondi Pty Ltd (Applicant) Waverley Council (Respondent)
Representation:	Mr G Green, solicitor (Applicant) Ms A Berry, solicitor (Respondent) Pikes & Verekers Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	10322 of 2015
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Modification Application DA-88-2013/A by Waverley Council under section 96(2) of the Environmental Planning and Assessment Act 1979 (the Act). The modification application seeks to modify DA-88/2013/1 which was granted for the demolition of an existing dwelling and the construction of a new mixed use building comprising 8 residential units on 25 June 2013. The council approval was subject to a number of deferred commencement conditions. Deferred commencement condition 5 provided:

5. The rear most unit on the third floor of the proposed development is not approved and is to be deleted, and the rear boundary setback of the remaining third floor area be increased a further 1.5m.

2. On 30 July 2013 the applicant submitted a s82A review application to council seeking deletion of deferred commencement condition 5 (amongst other amendments). That review application was approved but subject to the following amendment to deferred commencement condition 5:

The rear most unit on the second (uppermost) floor of the proposed development is not approved and is to be deleted and replaced with a non-trafficable flat roof.

3. Condition 2(e) was also imposed on what became DA-88/2013/1 as follows:

2(e) The one bedroom apartment located at the rear second (uppermost) floor deleted by the deferred commencement matter No 5 is not approved and is to be deleted in order to reduce the visual bulk related impact to the rear and the adjoining property located at 3-5 Jaques Avenue, south west of the subject site.

4. The application proposes to modify condition 1 (a) to read as follows:

(1) Approved development

The development must be in accordance with:

(a) Architectural plans no. DA-00 - DA-12 dated 26/08/14 prepared by MHND Union.

(b) Delete condition 2(e) which condition requires deletion of a one

bedroom apartment located at the rear of the second (upper most) floor.

5. The appeal was subject of a conciliation conference on 7 May 2010 under s 34 of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34(4)(a). The parties consented to me disposing of the proceeding forthwith pursuant to s 34(4)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34(4)(b)(ii).

The site and zoning

6. The site is 1 Jacques Avenue Bondi Beach. It is within Zone R3 Medium Density Residential under Waverley Local Environmental Plan 2012 (LEP 2012). The properties on the western side of Jaques Avenue are zoned R3 with the exception of 20 Hall Street which is a single storey heritage listed commercial building occupied by the Australian Post Office. To the south of the site at 3-5 Jaques Avenue is a two-storey residential flat building with a pitched roof. To the west of the site or the rear of the site is a single storey heritage listed federation dwelling house - 15 Consett Avenue also zoned R3 Medium Density Residential.

7. The planning controls differ between the R3 zones and the adjacent B4 Mixed Use Zone. The development controls are not uniform across the R3 zone as LEP 2012 has makes provision for different controls in different parts of the zone to give different levels of density in development.

The evidence

8. Town planners, Ms Kerry Gordon for the council and Mr George Karavanas, for the applicant agree that the additional apartment, in the amended plans, represents the smallest form of apartment possible and the most appropriate design possible if the Court was to decide that an apartment in that location is acceptable. The experts also agreed that the proposal presents no overlooking issues given the 1.7 m high translucent glass privacy screen on the balcony to the new unit. The applicant is also willing to provide a 1.7 m high translucent glass privacy screen to the balcony below although this does not directly relate to the modification application. The experts however remain in dispute over whether the additional apartment should be approved.

9. Ms Gordon maintains that condition 2(e) should remain as the addition of the uppermost unit is inconsistent with the distinct planning controls that apply to the site including the height, FSR, wall height and side setback controls. In her opinion, the additional visual bulk is unacceptable as it is not anticipated by the suite of controls, is uncharacteristic of the future desired character of this part of the street block and is wholly the result of a non-complying element of the building.

10. Ms Gordon also maintains that the proposed additional apartment imposes unreasonable impacts on the property to the rear and to the south by the extra bulk created by the additional unit Her concerns were supported by the owners of these properties who provided oral evidence to the Court on site and during the hearing.

11. Mr Karavanas recognises that the proposal does not comply with the FSR standard and the wall height. However, the proposal complies with overall building height standard of 9.5m (and is lower than the topmost height of the building which is 10.03m). The proposal although comprising a third storey (as is the case with the front of the building), is in the form of a mansard roof. This roof form is strictly not an attic (as per the DCP's definition), however, it is Mr Karavavas’s opinion, for most part, it appears like a roof form. The proposal has a rear setback of 9.63m and complies with the rear setback requirement of 6.2m.

12. Accordingly, the proposal, notwithstanding the non-compliance with the FSR standard, is consistent with the desired form of development contemplated by the controls for a two storey building plus attic.

Is the proposed addition acceptable?

13. In considering the expert evidence and with the benefit of a site inspection, I am satisfied that the modification application should be approved, for a number of reasons, notwithstanding the non-compliance with some council planning requirements. First, and in accepting that there is a breach of the FSR development standard, I accept that there is some justification for the variation. The existing development was approved with an FSR of 1.02:1. The additional 35 sq m will result in an FSR of around 1.1:1. This additional floor area is contained within the maximum height of 9.5m. The additional unit has a 3m southern side setback and a 6.2m rear setback, which complies with the DCP controls and is consistent with the building form approved for the site.

14. Second, the bulk as viewed from the street remains unchanged as the unit is located at the rear although the focus of concern over bulk related to the view from the rear. In this regard, the rear of the building is located 16m from the living area of the adjoining rear dwelling and a minimum of 6.2m from its private open space. The internal living area of the additional unit is located a minimum of 8.5m from the rear boundary. To the south, the unit is setback 3.8m from the adjoining building. The view lines provided by the applicant indicate that much of the proposed unit will be screened by the existing building from the yard of the property to the rear.

15. The additional unit raises the height by 2.5m but is contained within the permissible maximum height for the site. I do not consider the additional unit creates a significant or unacceptable increase in the bulk of the building as viewed from the rear or side elevations. The modification proposed is a small addition in the context of the approved building and continues the existing bulk which has been assessed as appropriate for the site and context.

16. Third, the amenity impacts as a result of the additional unit are acceptable. The rear unit has a 1.7m high translucent privacy screen along the rear of the balcony to screen views, which will encourage views upwards rather than down into rear adjoining properties. Vegetation is also proposed on the southern side of the balcony. No additional overshadowing will occur as a result of the proposed unit. This was an agreed position of Ms Gordon and Mr Karavanas.

17. Fourth, and while I do not rely on the additional screen to the balcony below the proposed unit, the screen will eliminate virtually all overlooking from this balcony compared to the direct overlooking that currently exists.

18. Fifth, the proposal is consistent with the desired future character of the area which is for 2-4 storey buildings. I am satisfied that the proposed additional unit does not cause any unreasonable impacts to the amenity of adjoining properties. The building complies with the height and setbacks controls for the site and the additional unit is located within a permissible building envelope. The DCP allows flexibility in the application of density and the proposed additional unit is considered acceptable for the site in relation to the controls and context of the surrounding area.

19. Sixth, the wall height including the second floor unit is 8.4m to 8.7m on the northern elevation and 6.9m on the southern elevation. The approved building has wall heights of 6-9.5m (north) and 6.5-7.5m (south). The modification is within the already approved wall heights for the development and given the absence of amenity impacts, the wall height is acceptable.

20. Seventh, the proposal contains three storeys, with the third floor contained within a mansard style roof form. The approved DA consisted of two storeys plus an additional floor and the modification is not inconsistent with roof form already approved.

21. Eighth, and while Ms Gordon frequently mentioned the transitional nature of the council planning controls, I am satisfied that even with the additional unit at the rear a satisfactory transition occurs at the rear of the site given the additional setback to the rear boundary, the further setback of the level of the proposed unit and the treatment to protect the privacy of adjoining owners.

Orders

22. Having found that there is no reasonable basis to refuse the application, the orders of the Court are:

1. The appeal is upheld.

2, The application to modify DA-88/2013/1 is approved and is to be modified to read as follows:

Condition 1(a) be deleted and replaced with the following

(a) Architectural plans no. DA-00 - DA-12 Rev G prepared by MHND Union.

Condition 2(e) be deleted

3. DA-88/2013/1, as modified by order 2, for the construction of a residential flat building at 1 Jacques Ave, Bondi Beach is approved, subject to the consolidated conditions in Annexure A.

4. The exhibits are returned with the exception of exhibits A and 1.

___________

G T Brown

Acting Senior Commissioner of the Court

10322 of 2015 Brown (O)_Amended on 3 December 2015 (23.8 KB, pdf)

10322 of 2015 Brown (C) (254 KB, pdf)

Amendments

07 December 2015 - Order 3 has been amended

Order & conditions have been attached

Decision last updated: 07 December 2015